IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P. NO.31815/2019(LR) BETWEEN:
ES SUN POWER PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT 2013 HAVING ITS REGISTERED OFFICE AT # 55, SOLAR TOWER, 6TH MAIN 11TH CROSS , LAKSHMAIAH BLOCK GANGANAGAR, BENGALURU – 560 024 KARNATAKA REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE MR. MAHABALESHWAR BHAT AGED ABOUT 43 YEARS.
... PETITIONER (BY SRI. K.G. RAGHAVAN, SR. COUNSEL A/W SRI. GANAPATI HEGDE, ADVOCATE) AND:
THE DEPUTY COMMISSIONER CHIKKABALLAPURA DISTRICT DISTRICT OFFICES COMPLEX SIDLAGHATTA ROAD CHIKKABALLAPURA – 562 101 KARNATAKA.
(BY SRI. H.C. KAVITHA, HCGP ) ... RESPONDENT THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED:19.07.2019 PASSED ON I.A.NO.1 BY THE KARNATAKA APPELLATE TRIBUNAL, BANGALORE IN APPEAL NO.666/2019 (ANNX-E) AND CONSEQUENTLY STAY THE ORDER AZT ANNX-B DATED:24.06.2019 PASSSED BY THE RESPONDENT PENDING DISPOSAL OF THE AFORESAID APPEAL NO.666/2019 BEFORE THE KAT, BANGALORE BY ISSUANCE OF A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR DIRECTION AS THE CASE MAY BE.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Though matter is listed for preliminary hearing ‘B’ group, by consent of learned Advocates appearing for parties, it is taken up for final disposal.
2. Heard Sri K.G.Raghavan, learned senior counsel appearing on behalf of petitioner and Smt.H.C.Kavitha, learned HCGP appearing for respondent. Perused the records.
3. Government of Karnataka having identified 60 taluks in the State to generate solar power, sought for private sector participation and petitioner was allotted 20 MW (AC) capacity of solar PV ground mount project in Bagepalli Taluk, Chikkaballapura District. In order to set up said project, petitioner identified certain agricultural lands in Sy.Nos.65/P2, 65/P3, 66/P1, 66/P3, 66/P5, 66/P6, 67/P2, 67/P3, 67/3, 67/P4, 67/P5, 67/P7, 67/P8, 67/P9, 67/P10, 68/P1, 68/P2, 68/3, 222 and 223 of Uduvaripalli village, Cheluru Hobli, Bagepalli Taluk, Chikkaballapura District, in all measuring 94 acres 30.5 guntas. Since petitioner was inclined to purchase said lands, exemption/permission as required under Section 109 of the Karnataka Land Reforms Act, 1961 (‘Act’ for short) was sought for by filing an application dated 30.06.2017/01.07.2017 (Annexure-A) before respondent. After a lapse of two years, order dated 24.06.2019 (Annexure-B) came to be passed by respondent rejecting the request of petitioner by observing that lands in question had been granted to persons belonging to Scheduled Caste and Scheduled Tribe and there is violation of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short ‘PTCL Act’) . Aggrieved by the said order, appeal was filed by petitioner before Karnataka Appellate Tribunal in Appeal No.666/2019 along with application for stay of order under challenge. Tribunal, by impugned order dated 19.07.2019 (Annexure-E) has rejected the application on the ground that order under challenge is not an executable order and as such, question of staying the same does not arise. Hence, this writ petition.
4. Having heard learned Advocates appearing for parties and having regard to the language employed in Regulation 13 of the Karnataka Appellate Tribunal Regulations, 1979, this Court is of the considered view that tribunal, irrespective of the order being executable or not, is empowered to stay the order under challenge by examining the same on merits independently and such power being vested with the tribunal, it cannot hold or arrive at a conclusion that merely on the ground that order is not executable, it would not be stayed. There may be varied circumstances where order under challenge before appellate tribunal may also be used in collateral proceedings and finding thereon may affect the rights of parties. In the instant case, as could be seen from the endorsement dated 24.06.2019 (Annexure-B) which is impugned or challenged in the appeal before appellate tribunal in Appeal No.666/2019, not only order of rejection of permission sought for by the petitioner has been challenged but also the observation made by the Deputy Commissioner for rejecting said application, contending interalia that said authority being appellate authority under the PTCL Act could not have formed an opinion, inasmuch as, said authority being an appellate authority under the PTCL Act, if opinion is expressed, then hearing of the appeal would be an empty formality or it would be pre-decisioned hearing. There cannot be any dispute to the proposition that respondent – Deputy Commissioner, Chikkaballapur District being the appellate authority under the PTCL Act i.e., under Section 5A of PTCL Act. Thus, when the Deputy Commissioner exercising dual powers one under the PTCL Act and one under the Karnataka Land Reforms Act, 1961, would not be express any opinion on merits and that too, based on the report of the jurisdictional Tahsildar. At the most, he could have rejected the claim of petitioner seeking permission for purchasing agricultural land based on the opinion rendered by the jurisdictional Tahsildar. On the other hand, Deputy Commissioner seems to have arrived at a conclusion that “there is violation” of the provisions of PTCL Act. In other words, he has already formed an opinion. Thus, in the event of appeal being filed either by original land owners or the petitioners herein, Deputy Commissioner would not be in a position to resile from opinion rendered already. As such, prima-facie, opinion expressed would amount to expressing opinion on the merits of the appeal that would have been filed by petitioner.
5. Be that as it may. Issue regarding prayer of petitioner for permission having been rejected by Deputy Commissioner by issuing endorsement dated 24.06.2019 being at large in Appeal No.666/2019, it is for the appellate tribunal to take into consideration these aspects and pass appropriate orders on merits while adjudicating the appeal. However, on the ground that endorsement dated 24.06.2019 is not an executable order, prayer for grant of stay of said endorsement cannot be rejected. To that extent only, petitioner would be justified in contending that impugned order dated 19.07.2019 passed by appellate tribunal vide Annexure-E is not sustainable.
For the reasons aforestated, I proceed to pass the following:
ORDER (i) Writ petition is allowed in part.
(ii) Order dated 19.07.2019 passed by Karnataka Appellate Tribunal in Appeal No.666/2019 (Annexure-E) is hereby set aside and application – I.A.I filed by the petitioner seeking stay of endorsement dated 24.06.2019 issued by respondent is restored to the file of Karnataka Appellate Tribunal for being disposed of on merits and in accordance with law.
However, it is made clear that opinion expressed aforesaid by this Court is only for the limited purpose of considering the prayer for quashing of order dated 19.07.2019 (Annexure-E) only.
SD/- JUDGE *sp