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End Practice Of Giving ‘Plum’ Postings For Money: Karnataka HC Seeks Suo Motu Case Against State

 

In a significant, swift and strong development, the Karnataka High Court has just recently on March 15, 2021 in a learned, latest, landmark and laudable judgment titled Jayamma vs State of Karnataka in Writ Petition No. 9723 of 2020 along with others has urged the Chief Justice to take up a suo motu case against the State Government to put an end to the pernicious practice of providing postings for monetary considerations and reasons other than public interest. A single Judge Bench of Justice R Devdas of Karnataka High Court said in its order of March 15 that, “Every now and then the citizens of this State are given to understand that ‘plum’ postings are assigned for monetary considerations. Such news and information are published in national newspapers, magazines, television channels and social media.” More of it shall be discussed later but this is so serious that it just cannot be brushed beneath the carpet especially since it is none other than the Karnataka High Court which has itself made such a serious observation in this notable judgment! Truth must come out and those who are involved must be strictly dealt with in accordance with law!

To start with, in the common order authored by the single Judge Bench of Justice R Devdas, the ball is set rolling by first and foremost putting forth in para 1 that, “These three writ petitions arise between common parties and in respect of a property bearing Sy. No. 152/1, situated at Doddathogur Village, Begu Hobli, Bangaluru South Taluk. Therefore, the petitions were heard  together and are disposed of by this common order.”

While elaborating on the facts of the case, the Bench then goes on to point out in para 2 that, “Certain undisputed facts are that one Sri Kaveriga was granted the land in question. Subsequent to his death, the legal heirs who inherited the property, got the khata transferred in their names. According to the inheritance khata, the names of the legal heirs of Sri Kaveriga were entered in the revenue records, in respect of the property in question. The khatedars sold the property under a registered sale deed dated 09.04.2001, in favour of one Sri Karar Ahmed. Consequent to the transfer, the revenue records were mutated in the name of Sri Karar Ahmed. Thereafter, he got the lands converted from agricultural to non-agricultural purpose, from the competent authority, on 21.09.2001. Sri Karar Ahmed sold a parcel of the converted land, measuring about 1 acre 30 guntas; out of 2 acres 31 guntas, in favour of one Sri. K. Boopathy on 27.07.2002. The remaining extent was sold in favour of M/s. Pathy Housing Private Ltd., represented by Sri. K. Boopathy, on 21.05.2003. The said Sri. K. Boopathy got a plan sanctioned for formation of a layout in respect of 1 acre 30 guntas and thereafter formed residential sites in the layout and sold 12 sites in favour of Sri. K.C. Varghese. These 12 sites measuring about 14,880 sq. ft. were sold by Sri. K.C. Varghese in favour of M/s Unidesign Builders and Developers Pvt. Ltd., the petitioner in W.P. No. 915/2020 and W.P. No. 5008/2020 and the 4th petitioner in W.P. No. 9723/2020.”

While continuing in the same vein, the Bench then elucidates in para 3 stating that, “In the meanwhile, some persons had moved the Tahsildar, Bangalore South Taluk, seeking change of revenue entries in respect of Sy. No. 152/1 and the adjacent properties. The Special Tahsildar, by order dated 21.12.2005 had directed entry of the names of the applicants in the revenue records, including Sy. No. 152/1. Sri. K. Boopathy preferred an appeal before the Assistant Commissioner and the appeal was allowed, setting aside the order passed by the Special Tahsildar and further directed restoration of the khata as it stood earlier. At this juncture, the 8th respondent Sri Muniraju M filed Revision Petition before the Deputy Commissioner, challenging the order passed by the Assistant Commissioner stating that he has not sold the property in favour of Sri. Karar Ahmed and that his name and signatures were fabricated in the sale deed. The Deputy Commissioner allowed the Revision Petition and set aside the order passed by the Assistant Commissioner.”

Furthermore, the Bench then envisages in para 4 stating that, “The petitioner M/s. Unidesign filed a petition in W.P. No. 56193/2017, calling in question the order passed by the Deputy Commissioner. In the said writ petition, along with the official respondents, respondent No. 8 Sri. Muniraju M, Sri Karar Ahmed, Sri K. Boopathy and Sri. K.C. Varghese were arrayed as party respondents. The writ petition was allowed by order dated 03.04.2019, setting aside the orders of the Deputy Commissioner, while restoring the order passed by the Assistant Commissioner. A specific direction was given to remove the name of Sri Muniraju from the revenue records in respect of Sy. No. 152/1, while noticing that he had sold the property and the lands were converted to non-agricultural use. A further direction was also given to reflect the formation of residential sites and the local authority was directed to give distinct site numbers. The writ appeal preferred by Sri Muniraju M was dismissed on 18.12.2019. In the meanwhile, M/s. Unidesign sold various sites in favour of petitioners No. 1, 2 and 3. The said petitioners obtained sanctioned plan, put up construction and let out the properties on lease to various tenants.”

To put things in perspective, the Bench then observes in para 5 that, “The respondent No. 8 Sri M Muniraju seems to have approached the National Commission of Scheduled Castes, New Delhi, (hereinafter referred to as the ‘National Commission’ for short) alleging that atrocities were perpetrated by M/s. Unidesign, Sri. Mohammed Yusuf, Smt. Ashraff Unnisa, Sri. K Das, Sri. Venkateshappa, Sri. Chikka Gurumurthy, Sri Krishnappa and others, stating that they had fabricated the documents to snatch away landed properties from him. Report is said to have been obtained from the Tahsildar, Bengaluru South Taluk and the Joint Director of Land Records. The National Commission thought it fit to recommend to the government to ensure resumption and restoration of the granted land comprised in Sy. No. 152/6 (earlier part of Sy. No. 152/1) measuring 1 acre 25 guntas in favour of Sri M Muniraju and to ensure that possession of the entire land vests with Sri M Muniraju in accordance with Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (hereinafter referred to as the ‘PTCL Act’, for short) and to set aside all sale transactions and to ensure immediate closure of criminal cases registered against Sri. M Muniraju and to initiate proceedings against all the concerned for having committed acts of atrocities upon Sri. M Muniraju. The National Commission communicated its proceedings dated 01.11.2019, to the Director General of Police, Bengaluru, the Deputy Commissioner of Land Records, vide a communication dated 11.11.2019, for taking necessary and prompt action. The petitioners herein filed W.P. No. 915/2020, calling in question the proceedings and directions issued by the National Commission. By order dated 22.01.2020, a co-ordinate Bench of this Court stayed the proceedings and directions given by the National Commission. However, it was observed that the interim order will not come in the way of the authority exercising power under the provisions of the PTCL Act.”

Simply put, the Bench then observes in para 15 that, “Since question of maintainability of the writ petitions and availability of alternative remedy was raised on behalf of the respondents, this Court is required to deal with that question. In Whirlpool Corporation (supra), it was held that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This Court has a discretion to entertain or not to entertain a writ petition. It has been held that the writ Courts have imposed upon themselves certain restrictions, one of which is that if an effective and efficacious remedy is available, the Court would not normally exercise its jurisdiction. But, the alternative remedy has been consistently held by Hon’ble Supreme Court as not to operate as a bar in at least three contingencies, viz., where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the Principles of Natural Justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

While citing yet another relevant ruling, it is then stipulated in para 16 that, “In Rajasthan State Industrial Development (supra) it was held that the primary purpose of the writ is to protect and to establish rights, and to impose a corresponding imperative duty existing in law. It is designed to promote justice (ex-debito justitiae) and its grant or refusal is at the discretion of the Court. It was held that while dealing with a writ petition, the Court must exercise discretion, taking into consideration a wide variety of circumstances, inter alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ and the nature and extent of injury that is likely to ensue by such grant or refusal. Hence, discretion must be exercised by the Court on grounds of public policy, public interest and public good. The writ is equitable in nature and thus, its issuance is governed by equitable principles. Refusal of relief must be for reasons which would lead to injustice. The prime consideration for issuance of the writ is, whether or not substantial justice will be promoted. Furthermore, it was held that the conduct of the opposite party is exhibited from the material available on record to have determined to ignore the demand of the applicant with respect to the enforcement of his legal right. However, it was also held that a demand may not be necessary when the same is manifest from the facts of the case, that is, when it is an empty formality, or when it is obvious that the opposite party would not consider the demand.”

Without mincing any words, the Bench then observes in para 17 that, “Having regard to the rulings of the Hon’ble Apex Court, when we analyze the averments made in the writ petition, this court finds that grave miscarriage of justice is suffered by the petitioners herein, at the hands of not only the private respondent, but also the official respondents. The Assistant Commissioner, who has been arraigned a party eo-nomine, claims to have taken up the proceedings as directed by the National Commission. But, what is noticeable is that the National Commission recommended the case of the 8th respondent to the Government of Karnataka to ensure resumption and restoration of the land in favour of the 8th respondent. A communication dated 11.11.2019, was made by the National Commission to the Director General of Police, the Commissioner of the Land Revenue and the Deputy Commissioner, Bengaluru Urban District along with a copy of the recommendation of the Commission. In thee impugned order passed by the Assistant Commissioner, no reference is made to any communication, either by the National Commission or the Deputy Commissioner or the State Government, directing the Assistant Commissioner to take up the proceedings. Therefore, it is clear that the Assistant Commissioner has initiated the proceedings at the behest of the 8th respondent. Even otherwise, if the Assistant Commissioner had initiated the proceedings on going through the recommendation dated 01.11.2019, made by the National Commission, notice to M/s Unidesign should have been issued, as the entire allegation was against M/s. Unidesign. Ignoring the said requirement, the Assistant Commissioner has issued notice only to Sri. Bhoopathy and Sri. Karar Ahmed. It is stated in the impugned order that Sri. Bhoopathy appeared before the Assistant Commissioner and filed an affidavit dated 14.01.2020, admitting that the sale in his favour was in violation of the provisions of the PTCL Act. He further prays that if the authority finds that there was violation, he should be suitably compensated. Sri Bhoopathy had nothing to loose. This clearly betrays the conspiracy and consorted effort of Sri Muniraju and the official respondents in defrauding the petitioners.”

More damningly, the Bench then puts forth in para 18 that, “The diabolic conspiracy is further exhibited by the swiftness with which the respondents have proceeded. Final order is passed on 18.02.2020, declaring that the sale transaction dated 09.04.2001, by the legal heirs of Sri. Kaveriga in favour Sri Karar Ahmed and the sale transaction dated 27.07.2002 by Sri. Karar Ahmed in favour of Sri. K. Bhoopathy are null and void. In the meanwhile, the petitioners had filed Writ Petition No. 915/2020, calling in question the orders/recommendation of the National Commission. The 8th respondent herein had filed a Caveat and he was aware of the interim order dated 22.01.2020, passed by this Court, staying the proceedings and directions given by the National Commission. Nevertheless, the 8th respondent has succeeded in securing an illegal order at the hands of the Assistant Commissioner. What is more intriguing is that the impugned order was passed on 18.02.2020 and on 26.02.2020 the buildings belonging to the petitioners were demolished, post haste.”

Most significantly and really, no doubt, also most remarkably apart from also being the most distinguishing para as also most damningly which forms the cornerstone of this notable and highly commendable judgment is then stated in para 28 wherein Justice R Devdas of Karnataka High Court holds most brilliantly, boldly and bluntly that, “Before parting with these writ petitions, it needs to be mentioned that the highhanded action on the part of the Assistant Commissioner and the Tahsildar is required to be taken note of and appropriate action is required to be initiated against them, to take things to their logical conclusion. This Court should take judicial notice of the fact that such highhanded action on the part of the respondent-authorities could not have happened if the authorities were sensitive enough about their powers and functions and the obvious disregard may have been occasioned due to the fact that postings are given to such sensitive offices, not on merits or with public interest in mind. It is obvious that the respondent-authorities are fearless of the consequences of being in conflict with the law. Such offices are emboldened by the fact that they are protected by the Government. Every now and then the citizens of this State are given to understand that ‘plum’ postings are assigned for monetary considerations. Such news and information are published in national newspapers, magazines, Television channels and social media. Allegations are levelled by the opposition leaders and social activists. Cutting across all political parties that have formed Government, allegations are levelled against Heads of the Departments, Ministers and the Chief Ministers. There cannot be two views that if an Officer shells out money to get a plum posting, he would employ every means possible to recover the money he has invested and makes every effort to make money for future needs and therefore, this forms the vicious circle of corruption. Time has come when this Court has to step in to find out the truth of the fact and direct the State to put in place regulations to check the tentacles of corruption from taking strangle hold of the society. Therefore, this Court would urge that Hon’ble the Chief Justice may take note of the observations of this Court and take up suo motu proceedings against the State Government to put an end to the pernicious practice of providing postings for monetary considerations and reasons other than public interest.”

Finally, the Bench then holds in the last para 29 that, “For the foregoing reasons, this Court proceeds to pass the following:

ORDER      

1.  The writ petitions are allowed with costs of Rs. 10,000/- (Rupees Ten thousand Only) each, payable by the respondent-Assistant Commissioner (Sri M.G. Shivanna), the respondent-Tahsildar (Sri Shivappa Lamani) and respondent No. 8 (Sri M. Muniraju) to each of the four petitioners. The costs shall be paid within a period of four weeks from today and an acknowledgement shall be furnished in the office, for records. The strictures passed by this Court and costs imposed on the respondent-Assistant Commissioner and the respondent-Tahsildar shall be entered in their Service Register.

2. The impugned order dated 18.02.2020 passed by the respondent-Assistant Commissioner in Case No.K-SC-ST(S) 15/2019-2020, is hereby quashed and set aside.

3.  The matter stands remanded to the Assistant Commissioner who shall issue notice to the petitioners herein, permit them to file objections and raise all grounds including the question of delay and laches in initiation of the proceedings under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978.

4.  The Additional Chief Secretary, Department of Revenue, shall initiate an enquiry against the respondent-Assistant Commissioner and the respondent-Tahsildar and if required place them under suspension immediately. At any rate, the respondent-Assistant Commissioner Sri M.G. Shivanna, shall not hear this matter.

5.  The enquiry may be entrusted to the Hon’ble Lokayukta.

6.  The petitioners herein shall be put back in possession of the land in question, which was resumed by virtue of the impugned order.

7.  Liberty is granted to the petitioners to approach the competent Civil Court to seek compensation/damages at the hands of the respondent-Assistant Commissioner, respondent-Tahsildar, the State Government and the 8th respondent Sri. M Muniraju.

8. The recommendation dated 01.11.2019, made by the National Commission and the communication dated 11.01.2019 need not be acted upon.

A copy of this order shall be forwarded to the Chief Secretary, Additional Chief Secretary, Department of Revenue, for further action. A copy of this order shall also be placed before Hon’ble the Chief Justice of this Court. It is ordered accordingly. In view of the disposal of the petitions, pending IAs do not survive for consideration and are accordingly disposed of.”

In a nutshell, this extremely commendable, courageous, brilliant and balanced judgment deserves emulation by all the courts and para 28 is the real crux of this notable judgment which we have already discussed above in detail. There has to be zero tolerance for corruption and this is what one can gauge that the learned single Bench of Justice R Devdas of Karnataka High Court has sought to convey elegantly, eloquently and effectively. Every Judge, lawyers and all those who detest corruption in India to the hilt must read this noteworthy judgment! It goes without saying that it deserves to be implemented in its totality!

Sanjeev Sirohi

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