Mr Tejraj Gulecha Vs the State of Karnataka

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF CR.P.C., PRAYING TO A) ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, DIRECTION OR ORDER BY QUASHING THE IMPUGNED ORDER DATED 07/10/2022 IN LGC NO.918/2017 AT ANNEXURE-A AND ETC.

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT and HON'BLE MR JUSTICE G BASAVARAJA

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ORAL ORDER

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(PER: HON'BLE MR JUSTICE KRISHNA S DIXIT)

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Petitioners are knocking at the doors of Writ court

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essentially for assailing the order dated 7.10.2022 made

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by the Special Court in LGC No.918/2017 whereby, the cognizance of the offence in question having been inarticulately taken, at para 10, it has observed as under:

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" The collective consideration of the above referred provisions under Cr.P.C., Karnataka Land Revenue Act, 1964 and provisions under the Karnataka Land Grabbing Prohibition Act, 2011, the Court finds that there is no any prevention for this Court to try the offence punishable under Section 304-A of IPC. "

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Learned counsel for the petitioners argues that the case in C.C.No.19929/2016 then pending before the jurisdictional Chief Judicial Magistrate, Bengaluru, could not

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have been mindlessly transferred by the said court merely because there is such a Notification on the Administrative side; had the mind been applied, the subject transfer would not have taken place; therefore, transfer and all its consequential proceedings would be voided. In support of this, he presses into service a Coordinate Bench decision in SHRIRAM PROPERTIES PVT. LTD vs. STATE OF KARNATAKA¹ .

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Learned HCGP appearing for the respondents vehemently opposes the petition contending that the transfer of the criminal case to the Spl. Court established under the provisions of Karnataka Land Grabbing Prohibition Act, 2011, accords with the parameters fixed by the Rulings cited on behalf of the petitioners; even this aspect of the matter has been looked into by the Spl. Court while making the impugned order; after all, right to Forum is only a procedural right where substantive grievances can be worked out, regardless of the Forum. In the absence of cognizable prejudice, this court exercising a limited supervisory jurisdiction under Article 227 should

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1 2021 SCC OnLine Kar 15753

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not interfere. So contending, learned HCGP seeks

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dismissal of the petition.

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Having heard the learned counsel for the parties and having perused the Petition Papers, we are inclined to grant a limited indulgence in the matter as under and for the following reasons:

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(a) The criminal case in question was almost at the stage of trial, cognizance having been taken and the accusedpetitioners having already put in appearance. Which class of cases are to be tried by the Special Court is elaborately discussed by the Coordinate Bench in supra. Similarly, which class of cases are to be transferred to the Special Court are also delineated.

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(b) There is force in the submission of learned counsel appearing for the petitioners that the transfer of case of the kind is a serious matter, regardless of the importance of right to Forum contended by the learned HCGP. The Coordinate Bench has specifically stated that no transfer should take place to the Special Court without due

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application of mind by the Transferring Court to the facts and circumstances of the case and that in accomplishing it, the General Circular or Notification concerning the same need not be given much credence at all.

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(c) The Coordinate Bench referred to the decision in W.P.No.51187/2019 between SMT SUNITHA vs. STATE OF KARNATAKA , disposed off on 26.11.2019, wherein at paras 26, 27 & 28 of the said decision, it is observed as under:

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"26. For an action to be initiated under the Act, there has to be a positive action by the Authorities concerned. In that, there has to be positive proceedings which are initiated against a land grabber for an action of land grabbing. It is only those proceedings which are pending before any Authority or Court which are required to be transferred to the Special Court. 27. In the event of cases, where the plaintiff has filed a suit against the Governmental authority/ies to protect his/her/its right over property either by way of injunction, declaration or otherwise and in that suit, Governmental authorities who are arrayed as defendants take up the contention that the land in question is a Government land and/or that plaintiff had indulged in land grabbing, thereby satisfying the requirements of definition of 'land grabber', the Court or Authority before whom such proceeding is pending is:

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i) required to record a reasoned finding as to whether the Act is attracted to that fact situation after having arrived at a conclusion that land is Government land;

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ii) arrive at a conclusion that Act applies to the land in terms of Section 1(2) of the Act i.e., land as defined under Section 2(d) of the Act;

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iii) Plaintiff has committed an act of grabbing the land in term and section 2(b), without lawful entitlement with a view to illegally take possession of such land or enter into or create illegal tenancies or lease and licences agreements construct unauthorized structures thereon for sale or hire, or give such land to any person for rent or lease or licence basis for construction or use and occupation."

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28. In other words, Court or authority has to arrive at a conclusion that activity of grabbing of any land is without any lawful entitlement and with a view to illegally take possession of such land."

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d) Now, let us examine the order dated 20.06.2017 whereby

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the transfer has been effected by the learned Chief Judicial Magistrate, Bengaluru City;

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"As per the orders of Principal City Civil and Sessions Judge, Bengaluru, bearing No.ADM1(A)/419/2017, dated 31.05.2017, this case is

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transferred to Special Court, constituted under Karnataka Land Grabbing Prohibition Act, situated at Kandaya Bhavan, 3^rd Floor, Bengaluru-09. Office to send the records well in time."

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The said order does not reflect application of mind to the principles enumerated herein above and therefore, it cannot be sustained. As a consequence, on the principle of ex nihilo nihil fit meaning nothing comes out from nothing, the order of the Special Court also cannot be sustained. The entire matter requires fresh consideration at the hands of the Transferor Court.

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(e) The vehement submission of learned HCGP that regardless of the Forum, petitioners being the accused can work out their defense in accordance with law and therefore, Writ Court should not interfere in the matter, is too farfetched to gain acceptance. Ordinarily, right to Forum is treated as a procedural right, is true, provided the law applicable is same. However, when special rights and liabilities are created by a special statute, which also provides for the creation of a special machinery/Forum, such a contention cannot be countenanced. Transfer of a criminal case ordinarily involving offences punishable under Indian Penal Code to the Special Court for trying some other offence also, is a serious matter. Therefore,

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the argument of prejudice put forth by the learned HCGP does not merit acceptance.

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In the above circumstances, this petition succeeds; a Writ of Certiorari issues quashing the impugned order of the Special Court and the Transfer Order dated 20.06.2017 of the learned Chief Judicial Magistrate, Bengaluru. As a consequence, matter is now remitted to the Court of Chief Metropolitan Magistrate, Bengaluru, for consideration afresh after giving an opportunity of hearing to all the stakeholders. All contentions of the parties are kept open, costs having been made easy.

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Till remand is accomplished, the personal presence of the petitioners shall not be insisted upon, if they are represented by their counsel.

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Sd/(KRISHNA S DIXIT) JUDGE

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Sd/(G BASAVARAJA) JUDGE

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LNN/CBC

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List No.: 1 Sl No.: 42

Mr Tejraj Gulecha v. the State of Karnataka

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Mr Tejraj Gulecha v. the State of Karnataka

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