IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 22ND DAY OF JULY, 2019 :PRESENT:
THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R.DEVDAS WRIT PETITION NO.30272 OF 2019 (GM-RES) BETWEEN B. BALAKRISHNA S/O B.BASAPPA AGED 65 YEARS R/AT 1151, 13TH MAIN, 14TH CROSS, JUDICIAL LAYOUT, GKVK POST, BENGALURU-560065.
(BY SRI S S NAGANAND, SENIOR COUNSEL FOR ... PETITIONER SRI PRAVEEN KUMAR HIREMATH, ADVOCATE) AND 1. STATE OF KARNATAKA REPRESENTED BY THE PRINCIPAL SECRETARY, REVENUE DEPARTMENT, MS BUILDING, BENGLAURU-560 001.
2. THE REGISTRAR KARNATAKA LAND GRABBING PROHIBITION SPECIAL COURT 3RD FLOOR, KANDAYA BHAVANA, K.G.ROAD, BENGALURU-560 009.
3. R H RADDI HON’BLE MEMBER LAND GRABBING COURT, 3RD FLOOR, KANDAYA BHAVAN, BENGALURU-560009.
4. MS M.A. SHASHIKALA U DIRECTOR, BANGALORE ARBITRATION CENTRE KHANIJA BHAVAN, BENGALURU-560001.
... RESPONDENTS (BY SRI UDAYA HOLLA, ADVOCATE GENERAL A/W SRI VASANTH FERNANDES, AGA FOR R1 & R2 SRI B P PUTTASIDDAIAH, ADVOCATE FOR R3 & R4) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION DTD:11.7.2019 PASSED BY THE R-1 [ANNEXURE-A] AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 19.07.2019 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, DEVDAS J., MADE THE FOLLOWING:
ORDER The challenge in this petition is directed against the impugned notification No.RD 15 LGP 2019 dated 11.07.2019, passed by the respondent-State Government.
2. The petitioner is a Judicial Officer who retired as a District Judge, in the year 2014. The petitioner, after attaining superannuation, was appointed as Judicial Member of the Karnataka Land Grabbing Prohibition Special Court constituted under The Karnataka Land Grabbing Prohibition Act, 2011 (hereinafter referred to as ‘The Act’ for short). In terms of Section 7(7) of the Act, the Chairman and other Members hold office for a term of three years from the date on which they enter upon the office, or until the Special Court is reconstituted, whichever is later. The petitioner having been appointed under notification dated 22.03.2016, and having taken charge on 30.03.2016, three years came to an end on 30.03.2019. Therefore, the State Government issued a notification dated 30.03.2019 directing that the petitioner herein along with the Chairman and another Judicial Member to continue in the said post until further orders. The impugned order dated 11.07.2019 was issued by the State Government appointing the fourth respondent herein as a Judicial Member, while reappointing the third respondent as a Judicial Member. It is in this background that the instant petition is filed, calling in question the impugned order dated 11.07.2019.
3. Sri S.S.Naganand, learned Senior Counsel, appearing for the petitioner submits that the impugned order is in violation of the provisions of Section 7(7) of the Act. It is submitted that the Special Court, having been reconstituted on 30.03.2019, the State Government could not have issued the impugned notification before the expiry of three years from 30.03.2019.
4. Sri Udaya Holla, learned Advocate General appearing for the State Government, draws the attention of this Court to the terms of appointment, as stipulated in the notification dated 30.03.2019. The learned Advocate General submits that the Registrar of the Special Court had communicated to the Principal Secretary, Revenue Department, by communication dated 05.03.2019 that by notification dated 22.03.2016 the post of Chairman and four members, both Judicial and Administrative, were filled up. However, the Chairman and the petitioner herein took charge on 30.03.2019, while the third respondent herein took charge on 31.03.2019. The Registrar of the Special Courts therefore brought to the notice of the State Government that the three years term of the Chairman and two Judicial Members was coming to an end on 30/31.03.2019. The learned Advocate General submits that the State Government, in order to ensure that there is no vacuum, issued the notification dated 30.03.2019, directing the continuance of the Chairman and two Judicial Members in the respective posts, until further orders. It is further submitted that the notification dated 30.03.2019 cannot be read as reconstitution of the Special Courts. The learned Advocate General therefore submits that the State Government was well within its powers to issue the impugned notification reconstituting the Special Courts, in terms of Section 7(7) of the Act.
5. Sri S.S.Naganand, learned Senior Counsel submits that since the provision mandates appointment of Chairman and Members for a term of three years or ‘until the Special Court is reconstituted whichever is later’, the appointment of the Chairman and the other Members vide notification dated 22.03.2016 was legitimately protected till the Special Court was reconstituted. Therefore, it is submitted that the State Government was ill-advised to issue a notification to fill in the vacuum, when there was no vacuum as such.
6. Looking from this angle, it was submitted by the learned Senior Counsel that the notification dated 30.03.2019 should be read as reconstitution and the persons appointed therein are entitled to continue for a period of three years. Viewed from this angle, it is submitted that the State Government could not have issued another notification before the expiry of three years.
7. The learned Senior Counsel further submitted that this Court should bear in mind that unlike other Commissions where the doctrine of pleasure would apply, the case on hand pertains to appointment of Judges to the Special Court. The learned Senior Counsel, therefore submits that the doctrine of pleasure, even otherwise, should not be made applicable in the matter of appointment of Judges, else, the independence of Judges will be at stake. To buttress the said argument, the learned Senior Counsel submits that if the State Government is allowed to invoke the doctrine of pleasure in the appointment of Judges, the efficacy of Special Courts constituted for prohibition of land grabbing will be seriously dented. Several sensitive matters wherein huge extents of public property are involved, the doctrine of pleasure could be used as a tool to interfere in the administration of justice. In this regard, the learned Senior Counsel draws the attention of this Court to the terms of appointment in the impugned order dated 11.07.2019. It is pointed out that even in the impugned order dated 11.07.2019, the appointments are not made for a period of three years, but the appointments are made ‘until further orders’.
8. The learned Advocate General, on the other hand, submits that if the arguments of the petitioner is accepted, the notification dated 30.03.2019, strictly speaking, will have no legs to stand. This is because, the proviso to Section 7(3) of the Act provides that the Chairman shall be appointed after consultation with the Chief Justice of the High Court. The learned Advocate General therefore seeks to justify his argument that the notification dated 30.03.2019 was indeed issued as a stop-gap arrangement, in order to ensure that there is no vacuum, till the reconstitution of the Special Courts. It is in this background that the Hon’ble Chief Justice was not consulted, when continuing the appointment of Chairman, till further orders. The learned Advocate General has also made available the records for the perusal of this Court.
9. We have heard Sri S.S.Naganand, learned Senor Counsel for the petitioner and Sri Udaya Holla, learned Advocate General for the State of Karnataka and Sri B.P.Puttasiddaiah, learned Counsel for respondents No.3 and 4. We have perused the writ papers and the original records.
10. The question that arises for consideration is whether the notification dated 30.03.2019 can be construed as reconstitution of the Special Court, as provided in Section 7 of the Act? Section 7(2) provides that the Special Court shall initially consist of a Chairman and four other members to be appointed by the Government. Section 7(3) mandates that a person to be appointed as Chairman shall either be a Judge of the High Court or a former Judge of the High Court, while the proviso thereto mandates the appointment of the Chairman, by the Government, in consultation with the Chief Justice of the High Court. Whereas the said requirement is not mandated for appointment of the other members, including Judicial Members. Viewed from this angle, if the argument of the petitioner that the appointment should be read as an appointment for three years, in terms of the Section 7(7) is accepted, then the appointment of the Chairman vide notification dated 30.03.2019 does not comply with the proviso to Section 7(3).
11. In the light of the communication dated 05.03.2019, made by the Registrar of the Special Courts to the State Government that the term of the Chairman and two Judicial Members will be coming to an end on 30/31.03.2019, the Government was justified in issuing the notification dated 30.03.2019, directing continuance of the Chairman and the two Judicial Members ‘with immediate effect’ and ‘until further orders’. As rightly pointed out by the learned Advocate General, if the intention of the Government was to reconstitute the Special Court in terms of Section 7(7), the Hon’ble Chief Justice would have been consulted before appointing the Chairman. The records would also lend credence to this aspect since the Government consulted the Hon’ble Chief Justice, before appointing Hon’ble Justice Shri Ashok B.Hinchigeri, as Chairman of the Special Court, vide notification dated 11.07.2019.
12. No doubt, the appointment of Judicial Members was not required to be preceded by an approval or consultation with the Hon’ble Chief Justice, but, the thought process of the State Government is reflected in the records and consequent notifications dated 30.03.2019 and 11.07.2019. It cannot therefore be doubted that the Government was under the impression that a vacuum would be created and therefore proceeded to issue the notification dated 30.03.2019, to fill in the gap. Considering all these aspects comprehensively, this Court has no hesitation in holding that the notification dated 30.03.2019 cannot be termed as an action of the Government in reconstituting the Special Courts, in terms of Section 7(7) of the Act. The action of the Government in issuing the impugned notification dated 11.07.2019 cannot be termed as an action invoking the doctrine of pleasure. In fact, there is no such power invested in the Government, in the provision. The Government is empowered to reconstitute the Special Court, on the expiry of three years. Therefore, by issuing the impugned notification dated 11.07.2019, the Government has reconstituted the Special Courts. The term of appointment of the petitioner having come to an end on 30.03.2019, the Government was empowered to appoint any other person in the place of the petitioner.
13. Even otherwise, since Section 7(7) provides that the appointment of the Chairman and Members of the Special Courts on the expiry of three years or until the Special Court is reconstituted, whichever is later, the notification dated 30.03.2019 appointing the persons therein, until further orders stand superceded the moment a subsequent notification is issued and the subsequent notification shall be considered as ‘reconstitution’ of the Special Court. In the appointment order or notification dated 22.03.2016, the Government has specified in condition No.2 that the appointment of the Chairman and other Members thereto, shall be for a period of three years or till the Special Court is reconstituted, whichever is later. The reconstitution of the Special Courts having been made under the impugned notification dated 11.07.2019, no fault could be found in the impugned notification.
14. As regards the submission of the learned Senior Counsel for the petitioner that in the notifications dated 30.03.2019 as well as 11.07.2019, the Government has made the appointments in contravention to Section 7(7) of the Act, in keeping open the appointments at the pleasure of the Government, it would be trite to notice a decision of a co-ordinate Bench where one of us, Narayana Swamy J., was a party, in the case of Khusro Quraishi Vs. State of Karnataka and Others reported in (2012) 5 KLJ 116.
While considering the question whether the Government could make the appointments ‘until further orders’ though the provision stipulates a fixed term of three years, it was held as follows:
“12. In the present case, the petitioner was appointed as Chairman of the Commission “until further orders” and not for a fixed term of 3 years as provided for under section 4. The petitioner does not dispute right of the State Government to nominate either the Chairman or a Member of the Commission until further orders. The petitioner accepted his appointment with open eyes. In other words, the petitioner accepted his appointment though it was not made for fixed terms of 3 years. It clearly shows that the Government reserved its right to, either continue the petitioner or to appoint any other person in his place. The petitioner, therefore, cannot contend that in view of section 4 of the Act, he cannot be discontinued/removed by the Government till he completes the period of 3 years. If the petitioner claims that his appointment ought to have been made for a period of 3 years, he should have, when nominated, insisted the Government to fix his tenure before assuming charge. He did not do so. The notification / order by which he was nominated clearly speaks that he could hold the post until further orders of the Government and therefore, it was open to the Government to appoint any other person in place of the petitioner by exercising the power of pleasure doctrine. In such eventuality, the Government is not required to furnish the reasons nor the petitioner had right to know the reasons for his removal under section 4 of the Act. Once the doctrine of pleasure is invoked, neither the principles of natural justice would step in nor any question of giving an opportunity before removal would arise.”
15. Therefore, if the petitioner was aggrieved with the stipulation of the term ‘until further orders’ as found in the notification dated 30.03.2019, he was required to challenge the same. Looking from that angle too, the petition should fail. However, we appreciate the submissions of the learned Senior Counsel, Sri S.S.Naganand, that in the appointment of Judges, it would not be in the best interest of the judiciary to permit the State Government to keep its option open for invocation of its pleasure. As rightly submitted by the learned Senior Counsel, Section 7(7) mandates the appointment of Chairman and Members to hold office for a term of three years from the date on which they enter the office or until the Special Court is reconstituted, whichever is later. Section 7(7) does not invest a power or prerogative in the Government to curtail the term of appointment by invoking doctrine of pleasure. In our opinion, the issuance of the impugned notification dated 11.07.2019 without stipulating three years and keeping open the appointment at the will and pleasure of the Government, is contrary to the provisions of law. Therefore, the respondent-State Government is hereby directed to reconsider the stipulation of the terms of appointment in the impugned notification dated 11.07.2019.
16. In the light of the above, we are of the considered opinion that the petition is bereft of merits and therefore deserves to be dismissed.
17. The writ petition is accordingly dismissed.
SD/- JUDGE SD/- JUDGE JT/-