IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD WRIT APPEAL NO.1248 OF 2019 (KLR-RES) BETWEEN:
SRI. YOGANANDA MURTHY A. S/O KANCHIRAYAPPA AGED ABOUT 43 YEARS AJJENAHALLI VILLAGE NEERAGUNDA POST KASABA HOBLI, TURUVEKERE TALUK TUMKURU DISTRICT-572 212 ... APPELLANT (BY SHRI.RAGHAVENDRA G GAYATHRI, ADV.) AND:
1. SURVEY SETTLEMENT & LAND RECORDS K.R. CIRCLE BANGALORE-560 001 REPRESENTED BY ITS COMMISSIONER 2. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF REVENUE M.S.BUILDING BANGALORE-560 001.
... RESPONDENTS (BY SHRI. P.B.ACHAPPPA, AGA.) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE ORDER DATED:14.03.2019 PASSED IN WRIT PETITION 58086/2017 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON’BLE Court AND ALLOW THE WRIT PETITION AS PRAYED FOR AND ETC.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT The appellant was granted a licence as a Licenced Surveyor under the provisions of the Karnataka Land Revenue Rules, 1966 (for short “the said Rules of 1966”).
2. The licence was granted to the appellant on 1st October 2008, which was renewed from time to time. Lastly, it was renewed upto 31st October 2016.
3. On 4th July 2016, a show cause notice was issued to the appellant. It is stated in the show cause notice that one Nagaraj had filed an application for conducting survey. It was alleged that the appellant demanded a sum of Rs.25,000/- from him as illegal gratification. It was further alleged in the show cause notice that the said demand of illegal gratification has been recorded on a cell phone. In fact, it is alleged that the appellant was caught red-handed in his private office while receiving the illegal gratification of Rs.20,000/-.
4. The appellant submitted his reply to the show cause notice. In the reply, he has stated that he personally went to the village and met the applicant along with his assistants. He stated that with a malafide intention, one Sri.Nagaraj ensured that he is trapped at the instance of office of the Lokayuktha. The order impugned dated 15th July 2017, which was challenged by the appellant before the learned Single Judge was passed canceling the licence granted to the appellant.
5. The submission of the learned counsel appearing for the appellant is that an opportunity of being heard was not granted to the appellant as provided in Sub-Rule (2) of Rule 46-K of the said Rules of 1966. He submitted that though reply given to the show cause notice is referred in the impugned order passed by the learned Single Judge, the contents of the reply have not been considered before passing the impugned order.
6. The learned counsel appearing for the appellant further submitted that in this case, compliance with the principles of natural justice of giving an opportunity of personal hearing to the appellant was mandatory and the learned Single Judge has overlooked the same and has dismissed the writ petition.
7. We have considered the submissions.
8. Rule 46-K of the said Rules of 1966 reads thus:
“46-K. Cancellation of licence:- 1) Suspension of Licence of licensed surveyor- Licence issued under Rule 46-A shall be kept under suspension if the licensed surveyor contravenes any of the provisions of the Act or rules, circulars and directions issued by the Government/Commissioner/Director, Survey Settlement and Land Records after giving the show-cause notice and/or an opportunity of being heard. The power to suspend the licence will be vested with the Deputy Director of Land Records, Department of Survey Settlement and Land Records. Appeal against the orders of suspension, shall lie to Joint director of Land Records.
(2) Cancellation of Licence:- Licence issued under Rule 46-A shall be cancelled if the Licensed Surveyor contravenes any of the provisions of the Act, rules, circulars and directions issued by the Government/Commissioner/Director, Survey Settlement and Land Records, abstains from using the licence continuously for a period of 4 months, demands or accepts illegal gratification other than the fees due/payable to him and is under investigation by any Governmental agencies for misconduct or seeks change of jurisdiction already noted in the licence after giving the licensed surveyor an opportunity of being heard.”
9. One of the grounds for cancellation under Sub-Rule (2) of Rule 46-K of the said Rules of 1966 is that Licensed Surveyor has demanded illegal gratification and he is under investigation by any Government agency for misconduct.
10. In this case, the allegation against the appellant is that he demanded illegal gratification of Rs.25,000/- from the person who had applied for survey, which amount is other than the fees due and payable to him. The case made out in the show cause notice is that the conversation of the appellant with the applicant has been recorded on a cell phone. Moreover, there was a trap laid on 15th March 2016, in which the appellant is said to have been caught while accepting illegal gratification of Rs.20,000/-.
11. it is not in dispute that the trial against the appellant is pending. Thus, it can be said that the allegation of demand and acceptance of illegal gratification against the appellant is under investigation.
12. In view of the language used in Sub-Rule (2) of Rule 46-K of the said Rules of 1966, the grant of personal hearing would have been an empty formality. Moreover, when the impugned order was passed, the licence granted to the petitioner had already expired.
13. What was invoked before the learned Single Judge was a discretionary jurisdiction under Article 226 of the Constitution of India.
14. Considering what is discussed above, we find no error committed by the learned Single Judge and we decline to interfere with the impugned order passed under discretionary jurisdiction of Article 226 of the Constitution of India 15. There is no merit in the appeal. Accordingly, the appeal is dismissed.
Sd/- CHIEF JUSTICE Sd/- JUDGE DM