Partly allowed

Kaveri Retreats and Resorts Ltd. v. State of Karnataka

Karnataka HC15 Jun 2021WP/9396/2021

Case brief

AI extract

What is this about?

This writ petition challenged a show cause notice issued under Sections 39 and 94 of the Karnataka Land Revenue Act, 1964, alleging arbitrary granting of only five days notice. The High Court read down the notice to be under Section 94 only and transferred proceedings to the Deputy Commissioner for fresh adjudication.

What did the court decide?

The impugned notice was read down to be under Section 94 only; proceedings transferred to Deputy Commissioner for fresh adjudication.

Kaveri Retreats and Resorts Ltd. Vs… — Constitutional and Fundamental Rights | 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 JUNE 2021

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO. 9396/2021 (KLR/RES)

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BETWEEN :

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KAVERI RETREATS AND RESORTS LTD., REGISTERED UNDER THE COMPANIES ACT HAVING OFFICE AT SHIVAMEGAM TOWERS, T4, 2^ND FLOOR, NO.211/142, VALLUVAR KOTTAM HIGH ROAD, NUNGAMBAKKAM CIRCLE, CHENNAI - 600 034 REP BY ITS DIRECTOR MR.PRABHAT SAHAY VERMA S/O LATE MR.MUKUND SAHAY VERMA AGED 50 YEARS, R/AT FLAT NO.707, C BLOCK, BRIGADE GATEWAY ORION MALL BANGALORE - 560 022.

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... PETITIONER

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(By SRI. SHASHI KIRAN SHETTY, SENIOR ADVOCATE FOR SRI. KIRAN. J., ADVOCATE)

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AND :

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STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, VIDHANA SOUDHA, BENGALURU - 560 001.

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TAHSILDAR MADIKERI TALUK KODAGU DISTRICT.

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THE ASSISTANT COMMISSIONER MADIKERI SUB DIVISION, MADIKER TALUK KODAGU DISTRICT.

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MR.P.S.MAHESH TAHSILDAR MADIKERI TALUK KODAGU DISTRICT.

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... RESPONDENTS

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(By SRI. R. SRINIVASA GOWDA, AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION DECLARING THE NOTICE DATED 19.05.2021 IN NO.JAAGA/OTHUVARI/40/21-22 IS HIGHLY ARBITRARY, ILLEGAL WITHOUT AUTHORITY OF LAW ISSUED BY 2^ND RESPONDENT ANNEXURE-A AND ETC.

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THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioner, a company registered under the Companies Act, 1956, has filed this petition impugning the Show Cause notice dated 19.05.2021 in NO.JAAGA/OTHUVARI/40/21-22 issued by the

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Tahsildar, Madikeri Taluk, Kodagu District-the second respondent under the provisions of Sections 39 and 94 of the Karnataka Land Revenue Act, 1964 [for short 'KLR Act']. It is alleged that the petitioner has unauthorizedly occupied the Government lands measuring 4 acres in Sy. No.20/1 of 2^nd Monnangeri Village, Madikeri Hobli, Madikeri Taluk and therefore, the petitioner must within five days from the date of the notice i.e. on or before 24.05.2021, show cause against initiation of proceedings for eviction.

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2. The petitioner asserts that it has entered

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into the lease deed dated 01.07.2011 with Sri. Pramod Ranjan, the absolute owner of the converted lands in Sy. No.11/2B [measuring 12.70 acres] and in Sy. No.1/2 [measuring 16.52 acres] of 1^st Monnangeri Village, Madikeri Hobli, Madikeri Taluk, Kodagu District [subject property]. It has developed a resort in the subject property and is operating the same. The

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constructions have been put up several years back without any expansion. The petitioner to vindicate its possession of the subject property as the lessee under the lease deed executed by Sri. Pramod Ranjan, and to show that the show cause notice is ill founded, has traced title to the subject property right from the year 1911. It must be observed that there is a detailed reference to the transfer of the subject property from the year 1911 until the year 2005 when Sri. Pramod Ranjan purchased the subject property.

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3. Sri. Shashi Kiran Shetty, learned senior

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Counsel, relying upon certain circumstances submits that the impugned notice is motivated and is issued only because the petitioner refused certain

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accommodation in the resort to the officials due to the lockdown restrictions. It is pointed that the proceedings under Section 39 of the KLR Act can only follow adjudication under Section 94 of the KLR Act. In

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support of this proposition reliance is placed upon a decision of this Court in 'Food Corporation of India Employees Housing Co-operative Society Limited and Others v. State of Karnataka, by its Chief Secretary'¹ with emphasis on the conclusions in paragraphs-13 and 14 of this Judgment. It is emphasized that the impugned show cause notice is issued simultaneously both under Section 39 and Section 94 of the KLR Act only to constrain the petitioner.

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Sri. Shashi Kiran Shetty submits that the

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impugned show cause notice dated 19.05.2021 is issued contrary to the Circular dated 10.02.2010 bearing No.KPLC/LND/120/2009-10. The Government in this Circular has detailed the processes to be adopted for initiation of proceedings under Section 94 of the KLR Act. The Circular dated 10.02.2010 is categorical that

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1 ILR 2011 KAR 5172

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15 days notice must be issued for initiation of proceedings under Section 94 of the KLR Act, but the show cause notice is issued allowing only five days time. The State Government had announced lockdown until 24.05.2021, nonetheless the impugned show cause notice dated 19.05.2021 is issued fixing the date of hearing to be on 24.05.2021 allowing only five days time. The learned senior counsel contends that despite these circumstances impugned Show Cause is issued allowing only five days because it is intended to be vindictive.

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The Tahsildar, Madikeri Taluk, Kodagu District, who is arraigned even in his individual capacity, has filed the affidavit dated 09.06.2021 availing the opportunity granted by this Court to explain the urgency for him to issue show cause notice granting only five days time to the petitioner to respond during the lockdown restrictions. In this affidavit, the

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Tahsildar has referred to certain proceedings conducted in the month of April 2021 to substantiate his case of encroachment by the petitioner. The relevant

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paragraphs read as under:

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I state that the Taj Resort, Madikeri has illegally encroached Government paisary land and the Assistant Commissioner, Kodagu Madikeri received some credible reliable information that the petitioner who is running Taj Resort at 2^nd Monnangeri village of Madikeri Taluk illegally encroached 4.00 acres of Government paisary land in Sy. No. 20/1 of 2^nd Monnangeri village of Madikeri Taluk which land is in illegal possession of the said Taj Resort and as such after receiving the information the office of the Assistant Director of Land Records, Madikeri is directed to conduct the survey of the encroached area and thereby the survey came to be conducted on 17.04.2021 in the presence of the encroacher and other villagers and also in the presence of the Revenue Inspector and Village Accountant of the area and during the survey it came to be ascertained that the petitioner is in illegal

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possession of Government Paisary land in Sy.No.20/1 of 4.00 acres situated at 2^nd Monnageri Village and thereby the Survey Department prepared Survey sketch and mahazar and thereafter on 20.04.2021 the said factors came to be reported to me being the Tahsildar, Madikeri Taluk by the report of the Revenue Inspector of Madikeri Hobli."

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However, the Tahsildar has not given the reasons for issuing the show cause notice affording only five days time contrary to the Circular issued by the Government.

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This Court in Food Corporation of India Employees Housing Co-operative Society Limited and Others v. State of Karnataka, by its Chief Secretary supra has doubted the propriety and efficacy of a combined notice under Section 34 and Section 94 of the KLR Act. The Court has held as follows:

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"13. Until and unless a determination that a person is in either unauthorized occupation of public premises or is in wrongful

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possession of the land of the nature referred to in Section 67 of the Act has been made, the execution as such or Section 94[3] or even in Section 39 does not arise.

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14. When such is the legal position a combined notice combining the provisions of Section 39 with Section 94[3], the possibility of which is very much in doubt even in law, can only spell doom for petitioners, particularly, as, if they are permitted to be operated together. There is every likelihood of denial of proper opportunity to the petitioners, as a determination of unauthorized occupation by either wrongful possession or in unauthorized occupation is not contemplated in either of these provisions. They are to be independently determined, such independent determination having not been done so far, even as conceded by the respondents, it is only proper that the combined show-cause notices should not be permitted to be worked out to the detriment of the petitioners, particularly, when there are possibilities of the continuance of action pursuant to notices

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resulting in deprivation of a proper opportunity to the writ petitioners."

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demonstrating that the Tahsildar, Madikeri Taluk, Kodagu District, could not have issued combined notice for proceedings under Section 94 of the KLR Act allowing only 5 days period in view of the clear language of the Circular dated 10.02.2010 which stipulates that a minimum of 15 days notice must be given. When the impugned show cause notice is tested against these propositions, it cannot be sustained and will have to be quashed.

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8. Insofar as the petitioner’s apprehension that

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if the Tahsildar were to decide on the cause shown by the petitioner it would only be perfunctory or biased, it would suffice for this Court to observe that such situation is better averted lest it obscure the litigation and violate the settled principle that 'justice should not

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only be done but seem to be done'. Though the provisions of Section 94 of the KLR Act vests the jurisdiction in the concerned Deputy Commissioner, the State in exercise of its power under Section 195 of the KLR Act, has delegated the power under Section 94 to the jurisdictional Tahsildar. In the facts and circumstances of this case to ensure that there is true and effective adjudication of the allegations and the defence, and because it is unanimously submitted by Sri. Shashi Kiran Shetty as well as Sri. R. Srinivasa Gowda, learned Additional Government Advocate that the proceedings could be transferred to the Deputy Commissioner, Kodagu District for consideration, this Court is of the considered view that the petition could be disposed of with certain directions. Therefore the following:

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ORDER

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[a] The writ petition is disposed of.

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[b] The impugned notice dated 19.05.2021 in NO.JAAGA/OTHUVARI/40/21-22 of the Tahsildar, Madikeri Taluk, Kodagu District, shall be read down only to be a notice under Section 94 of the KLR Act to the petitioner to show cause against the allegations of encroachment of government land measuring 4 acres in Sy. No.20/1 of 2^nd Monnangeri Village, Madikeri Hobli,

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Madikeri Taluk;

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[c] The records of these proceedings shall be transferred from the records of the Tahsildar, Madikeri Taluk, Kodagu District - the respondent No.2 to the Deputy Commissioner, Kodagu District for adjudication, and the Deputy Commissioner shall issue fresh notice of hearing to the

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petitioner and decide on the merits of the cause shown strictly in accordance with law after due consideration.

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[d] The authorities are directed not to take any precipitous action until the decision of the Deputy Commissioner, Kodagu District pursuant to this order.

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SD/JUDGE

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AN/-

Kaveri Retreats and Resorts Ltd. v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Kaveri Retreats and Resorts Ltd. v. State of Karnataka

Case brief

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What did the court decide?

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