1. Heard the learned Additional Advocate General along with the learned Government Advocate and the learned counsel for the respondent/petitioner.

2. The parties are referred to by their nomenclature before the learned single Judge for the sake of convenience.

3. The respondents/appellants are the Secretary to Government, Department of Revenue and the jurisdictional Deputy Commissioner of Dharwad.

Brief facts of the case;

4. The case of the petitioner/respondent is that the State Government with the object of encouraging industrialization in the region decided to grant several parcels of land in order to enable the petitioner to start an industrial unit and pursuant to the said decision, the State Government by letter dated 07.09.1964 directed the second respondent to identify lands for the purpose of making a grant and the same culminated in the second respondent identifying 80.27 acres in Survey No. 88, 8.26 acres in Survey No. 89 and a photo Kharab measuring 10 guntas in Survey No. 89 of Rayanala village. Thereafter, the State by Government Order dated 05.01.1965 sanctioned the grant of the above lands and consequent to the same, the second respondent issued grant orders on 28.01.1965. Thereafter, an agreement came to be executed between the Tahsildar and the petitioner in Form-F on 05.03.1965.

5. It is pertinent to note at this stage itself that the order sanctioning the grant is by the Government and the grant order is by the second respondent.

6. Under the agreement certain conditions were imposed and in compliance with one of the conditions, the petitioner sought for conversion of the land from agricultural purpose to industrial purpose and the same came to be granted by the second respondent vide proceedings dated 02.07.1965 and the petitioner also paid the resultant conversion fine. It is the case of the petitioner that, petitioner was required to establish a unit within three years as per one of the terms of the grant and in compliance with the same and it is the case of the petitioner that it set-up an industrial unit and utilized about 70% of the allotted lands for the industrial activities and the remaining lands lie vacant. That, the order of grant contained a non-alienation clause and the petitioner in order to do away with the same made a request and on payment of certain charges the second respondent was pleased to delete the said condition and thereby, the clause prohibiting the sale of the granted lands for a period of 15 years came to be deleted by the second respondent.

7. It is contended by the learned counsel for the petitioner that the petitioner Company ran into rough whether and was staring at a financial crises and in order to overcome the financial distress faced by the Company, the petitioner resolved to divert the user of the lands from the purpose for which it was granted and desired to put the lands to residential use by forming a layout.

8. That pursuant to the said decision the petitioner approached the Urban Development Authority (for short 'Authority') and it is contended that the Urban Development Authority vide its proceedings dated 28.10.2015 was pleased to grant change of land use from industrial to residential purposes. A copy of which is produced as Annexure-E to the writ petition. That this grant of permission regarding change of land use was communicated to the second respondent by the Authority itself. A copy of the office communication is produced as Annexure-F to the writ petition. Thereafter the petitioner submitted an application seeking approval of the layout plan, proposed over the lands in its possession (that which was originally allotted for industrial purpose).

9. That, the Authority was pleased to reject the said application as it was not accompanied by a conversion order from the second respondent. The copy of the application dated 15.06.2016 and the proceedings rejecting the application dated 17.06.2016 are produced as Annexure-G and H. It would be useful to note the alacrity with which the Authority has processed the consideration of a layout plan and this alacrity is probably unheard of in its history. That the petitioner aggrieved by the order dated 17.06.2016 preferred W.P. No. 105734/2016 praying for quashing of the order noted supra and for a mandamus to the Authority to consider and sanction the layout plan. That the learned single judge after appreciating the law on the point, was pleased to hold that in view of the fact of the lands being situated within the urban agglomeration the provisions of Section 95(2) of the Karnataka Land Revenue Act, 1964 (for short 'KLR Act') are inapplicable and further held that as petitioner's application dated 31.10.2015 had not been processed within the stipulated time, the lands were deemed to have been converted. There can be no quarrel with the said proposition. That, aggrieved, the Authority preferred Writ Appeal No. 100124/2018. That the said Writ Appeal came to be rejected by a Co-ordinate Bench, by it's judgment dated 21.02.2018. The learned counsel would take this Court through the observations of the Division Bench. We have no quarrel with the observations made by the Co-ordinate Bench.

Petitioner's Contentions:

10. The learned counsel for the petitioner would submit that the Co-ordinate Bench has categorically held that the second respondent has no jurisdiction over the lands. We have perused the order of the Co-ordinate Bench and find no such observations. Be that as it may, the entire writ petition and the appeal was considered in the light of the dictum that the lands within the urban agglomeration do not come within the purview of Section 95(2) of the KLR Act. It is also the case of the petitioner that the instant proceedings are also bad and are vitiated by delay and laches. That the question of violation of grant conditions is being raised after a period of 54 years. That the change of land use for residential purposes and alienation of the said lands was necessitated because of severe financial crunch faced by the petitioner/Company. That the alienation of the lands was necessary to ward off the debtors and that the petitioner's loan account has been declared as an NPA. The petitioner was in fact constrained to liquidate similarly granted lands in Bengaluru. That the diversion and sale of the vacant lands was under compelling circumstances and was also in the light of the fact that the surrounding areas have been earmarked for residential purposes in the master plan prepared by the Authority.

11. It is contended by the learned counsel for the petitioner, that the petitioner bonafide participated in the proceedings pursuant to the show cause notice issued by the second respondent and in fact had submitted its statement of objections also. That during the course of hearing the second respondent furnished a copy of the letter addressed by the first respondent dated 03.08.2017, and that the contents of the said letter acted as the catalyst for the writ petition.

12. It is submitted by the learned counsel for the petitioner that the issue regarding violation of grant conditions is predetermined and the enquiry is a mere farce and an empty formality. That the second respondent being a sub-ordinate of the first respondent will not go beyond the conclusion drawn by the first respondent and the entire exercise of enquiry is rendered farcical. That the first respondent erred in holding that the attempt by the petitioner to seek for change of land use amounts to violation of the grant condition. That the petitioner having paid the charges imposed way back in 1966 and the non-alienation clause having been deleted by the second respondent, the lands vests as an absolute property in the petitioner with no fretters and hence, it is not open for the respondents to allege violation of grant condition. That the respondents have not appreciated the compelling circumstances which has necessitated the diversion of the lands from industrial purposes. That the respondents have failed to appreciate the fact that the sale of lands and mobilization of funds is required to continue the running of the industrial unit. That the result of the enquiry is already pre-decided. That the show-cause notice is without authority of law and the second respondent has no jurisdiction to conduct such an enquiry as the grant of land has been sanctioned by the State Government and the State being the granting authority, the second respondent is denuded of any authority to cancel the grant and the authority of the second respondent is limited to agricultural lands only. That the proposed action also stands vitiated on the ground of delay and laches as the allegation of violation of grant conditions is made after 54 years. That the enquiry is proposed only to harass the petitioner.

13. Lastly, it is contended that the petitioner is entitled to deemed change of land use in view of sub-section (3) of Section 14-A of Karnataka Town and Country Planning Act, 1961. That the petitioner had intimated the Local Planning Authority on 08.09.2015 about the intended diversion of the industrial land for residential purpose and in that view of the matter also, the impugned proceedings are unsustainable.

Respondents' Contention:

14. Per contra, learned Addl. Advocate General would contend that the petitioner having submitted itself to jurisdiction of the second respondent and having also filed its statement of objections, cannot pre-empt the enquiry by a subsequent writ petition. She would vehemently contend that the petitioner having raised all the objections before the enquiry authority, ought to have awaited the decision and it is not open for the petitioner to trash the enquiry in the instant manner.

15. She would further vehemently contend that a mere inter departmental communication cannot be the basis of the writ petition. That the petitioner cannot be permitted to do cherry picking of words and sentences in the inter departmental communication and read it out of context and give it a color which was never intended to by the author who is none other than the first respondent/first appellant. The communication merely communicates the opinion of the State and has in fact requested the Deputy Commissioner who has issued the grant order to conduct an enquiry. That under Rule 25(2) of the Karnataka Land Grant Rules, 1969 and in the light of the settled law by this Court, it is only the granting authority who can conduct an enquiry with regard to any alleged violation of grant conditions. She would contend that the judicial intervention at this stage i.e. when the authority was on the verge of concluding the enquiry is unwarranted and hence the impugned order is unsustainable and the learned Single Judge ought not to have entertained the writ petition and quashed the pending proceedings.

16. She would further contend that the writ petition is nothing but an abuse of the process of the law. She would contend that the allegations of predetermination are misplaced. She would further contend that the allegation that the enquiry proceedings are merely meant to harass or arm twist the petitioner are baseless. In this regard, she would take the Court through the entire writ petition pleadings and would submit that apart from a stray single sentence, the petitioner has not whispered about the alleged harassment, much less given details of any malafide action and that the allegation is baseless one.

17. Elaborating further she would contend that the author of the letter dated 03.08.2017 is very much within his rights in intimating the second respondent to look into the allegation for violation of the grant condition. She would state that the author is none other than the head of the Revenue Department of the State which is the custodian of all the lands that vests in the State. That apart, she would contend that the lands were granted pursuant to the sanction accorded by the Revenue Department and that too for a particular purpose.

18. She would vehemently contend that by the petitioner's own admission, the act of the petitioner in seeking for diversion of the lands for non-industrial use, amounts to violation of the grants condition. Elaborating further, she would contend that the object of the grant was not for enrichment of the petitioner alone but also for the collateral enrichment of the region, pursuant to the envisaged industrialization. That the object of granting such a huge extent of land was employment generation and thereby uplift the economic status of the people domiciled in the region. She would contend that the petitioner has been adopting litigation as a means to achieve its goals rather than adopting the proper course as mandated by law.

19. The learned Addl. Advocate General would submit that a fact finding exercise was necessary to establish the petitioner's contention that the present exercise by the State is vitiated by delay and laches. Elaborating further, she would submit that adjudication of the said contention requires consideration of factual aspects of the matter which cannot be gone into in the writ petition. The question as to when the violation was committed and when it became known to the State are factual aspects which need to be established before it can be held that the action of the State is vitiated by delay and laches and she would pray to allow the appeal and relegate the parties to the enquiry authority.

Relied upon citations:

The appellants have relied on the following rulings:-

(i). COMMISSIONER OF CENTRAL EXCISE, HALDIA Vs. KRISHNA WAX PRIVATE LIMITED (2020) 12 SCC 572 [LQ/SC/2019/1711] :

Reliance is placed on the observations made by the Hon'ble Apex Court in paragraph No. 15, as under:-

"15. It is thus well settled that writ petition should normally not be entertained against mere issuance of show-cause notice. In the present case no show-cause notice was even issued when the High Court had initially entertained the petition and directed the Department to prima facie consider whether there was material to proceed with the matter."

(ii). STATE OF ORISSA & OTHERS. Vs. MESCO STEELS LIMITED & ANOTHER (2013) 4 SCC 340 [LQ/SC/2013/253] :

Reliance is placed on the observations made by the Hon'ble Apex Court in paragraph Nos. 20 & 24, as under:-

"20. On the contrary, the issue of the show-cause notice setting out the reasons that impelled the Government to claim resumption of a part of the proposed lease area from the respondent Company clearly suggested that the entire process leading up to the issue of the show-cause notice was tentative and no final decision on the subject had been taken at any level. It is only after the Government provisionally decided to resume the area in part or full that a show-cause notice could have been issued. To put the matter beyond any pale of controversy, Mr. Lalit made an unequivocal statement at the Bar on behalf of the State Government that no final decision regarding resumption of any part of the lease area has been taken by the State Government so far and all that had transpired till date must necessarily be taken as provisional. Such being the case the High Court was in error in proceeding on an assumption that a final decision had been taken and in quashing what was no more than an inter-departmental communication constituting at best a step in the process of taking a final decision by the Government. The writ petition in that view was premature and ought to have been disposed of as such. Our answer to Question 1 is accordingly in the affirmative."

24. In the result we allow this appeal, set aside the judgment and order passed by the High Court and direct that the respondent Company shall submit its reply to the show-cause notice dated 6-2-2007 issued by the State Government within three months from today. The Government may then upon consideration of the reply so submitted pass a reasoned order on the subject within two months thereafter under intimation to the respondent. If the order so made is, for any reason found to be unacceptable by the respondent Company, it shall have the liberty to take recourse to appropriate proceedings before an appropriate forum in accordance with law."

(iii). DALIP SINGH AND OTHERS Vs. STATE OF HARYANA AND OTHERS (2019) 11 SCC 422 [LQ/SC/2018/1367] :

Reliance is placed on the observations made by the Hon'ble Apex Court in paragraph No. 22, as under:-

"22. The court can interfere with the revocation of resumption of land only if the executive has not carried out its duty or acted in violation of the procedure. Clause 11 of the terms and conditions of allotment clearly stipulates that in the event of breach of any of the conditions of transfer, the Estate Officer may resume the land in accordance with the provisions of Section 17 of the HUDA Act, 1977. The order of resumption of the plot is as per the terms and conditions of the allotment order and the High Court rightly refused to interfere with the order of the revisional authority. The appellants having failed before all the forums including the High Court and also the revisional authority, we do not find any serious infirmity or illegality in the order of resumption of the plot and therefore, this appeal is liable to be dismissed."

(iv). SETHI AUTO SERVICE STATION AND ANOTHER Vs. DELHI DEVELOPMENT AUTHORITY AND OTHERS (2009) 1 SCC 180 [LQ/SC/2008/2107] :

Reliance is placed on the observations made by the Hon'ble Apex Court in paragraph Nos. 14, 15, 17 and 22, as under:-

"14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned.

15. In Bachhittar Singh v. State of Punjab, a Constitution Bench of this Court had the occasion to consider the effect of an order passed by a Minister on a file, which order was not communicated to the person concerned. Referring to Article 166(1) of the Constitution, the Court held that order of the Minister could not amount to an order by the State Government unless it was expressed in the name of the Rajpramukh, as required by the said article and was then communicated to the party concerned. The Court observed that business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. Before an action is taken by the authority concerned in the name of the Rajpramukh, which formality is a constitutional necessity, nothing done would amount to an order creating rights or casting liabilities to third parties. It is possible, observed the Court, that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion which may be opposed to the earlier opinion. In such cases, which of the two opinions can be regarded as the "order" of the State Government It was held that opinion becomes a decision of the Government only when it is communicated to the person concerned.

17. In view of the above legal position and in the light of the factual scenario as highlighted in the order of the learned Single Judge, we find it difficult to hold that the recommendation of the Technical Committee of DDA fructified into an order conferring legal right upon the appellants.

22. From the afore-extracted notings of the Commissioner and the order of the Vice-Chairman, it is manifest that although there were several notings which recommended consideration of the appellants' case for relocation but finally no official communication was addressed to or received by the appellants accepting their claim. After the recommendation of the Technical Committee, the entire matter was kept pending; in the meanwhile a new policy was formulated and the matter was considered afresh later in the year 2004, when the proposal was rejected by the Vice-Chairman, the final decision-making authority in the hierarchy. It is, thus, plain that though the proposals had the recommendations of the State Level Coordinator (Oil Industry) and the Technical Committee but these did not ultimately fructify into an order or decision of DDA conferring any legal rights upon the appellants. Mere favourable recommendations at some level of the decision-making process, in our view, are of no consequence and shall not bind DDA. We are, therefore, in complete agreement with the High Court that the notings in the file did not confer any right upon the appellants as long as they remained as such. We do not find any infirmity in the approach adopted by the learned Single Judge and affirmed by the Division Bench, warranting interference."

(v). BACHHITTAR SINGH Vs. STATE OF PUNJAB AND ANOTHER AIR 1963 SC 395 [LQ/SC/1962/109] :

Reliance is placed on the observations made by the Hon'ble Apex Court in paragraph Nos. 9 & 10, as under:-

"9. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh once.

10. The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of PEPSU provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that the head of the State, the Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the "order" of the State Government Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned. In this connection we may quote the following from the judgment of this Court in the State of Punjab v. Sodhi Sukhdev Singh, AIR (1961) SC 493 [LQ/SC/1960/270] at p. 512.

"Mr Gopal Singh attempted to argue that before the final order was passed the Council of Ministers had decided to accept the respondent's representation and to reinstate him, and that, according to him, the respondent seeks to prove by calling the two original orders. We are unable to understand this argument. Even if the Council of Ministers had provisionally decided to reinstate the respondent that would not prevent the Council from reconsidering the matter and coming to a contrary conclusion later on, until a final decision is reached by them and is communicated to the Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondent."

Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over against and, therefore, till its communication the order cannot be regarded as anything more than provisional in character."

20. The respondent-Company has placed reliance on the following rulings:-

"1. Abdul Basheer Sab Vs. State of Mysore & Others ILR 1974 KAR 1313.

The aforesaid citation is of no avail to the petitioner. The said ruling has been rendered in the background of the provisions of Sections 3 & 8 of the Land Revenue Act and Rule 43-G7 and Rule 43-I. In fact, the observations prima-facie do not come to the aid of the petitioner. Further, the said ruling is also rendered prior to coming into force of the amended provisions of the Land Grant Rules. It is also to be noted that the learned Single Judge has recognized the empowerment under the Karnataka Land Grant Rules, 1969 conferring the power on the authorities to cancel the grant.

2. Shivaswamy R.M. Vs. State of Karnataka - 1982 (1) KLJ SN 22 (DB).

This ruling though noted in the index is not placed before the Court.

3. 1982 (1) KLJ 8.

Thirdly, reliance is placed on short notes cases, reported in 1982 (1) KLJ 8. Reliance is placed on the said ruling in fact, is contra to the earlier ruling noted supra of the learned Single Judge and the Division Bench has in fact recognized the power of the State Government to cancel grants of lands that had been granted.

4. The Deputy Commissioner, Davangere District and Another Vs. B.T. Mallikarjun & Others - ILR 2002 KAR 4264.

This ruling is virtually contra to the case being canvassed by the petitioner. In fact, the learned Single Judge has upheld the power empowered in the jurisdictional authority to cancel the grant. In the instant case, the question is whether the second respondent is the jurisdictional authority or not. The petition pleadings disclose that though an order of sanction has made by the sanctioning authority, the order of grant was made by the Deputy Commissioner. Hence, the said ruling is inapplicable in the facts and circumstances of the case.

5. A Narasimhamurthy Vs. State of Karnataka & Others ILR 2000 KAR 4761.

This ruling is under the PTCL Act involving lands granted for an upset price and such land is not bound by the non-alienation clause. In our opinion, the said ruling is inapplicable as the issue canvassed by the State is that the violation pertains to deviation of the land from the purpose for which it was granted.

6. Special Deputy Commissioner Vs. Narayanappa ILR 1988 KAR 1398.

This ruling pertains to the authority of the Deputy Commissioner under the Karnataka Town and Country Planning Act, 1961 which is not the issue involved in the instant petition. Hence, the said ruling is of no avail to the petitioner.

7. J.M. Narayana & Others Vs. Corporation of the City of Bangalore & Others ILR 2005 KAR 60.

This ruling relates to payment of property tax in respect of lands which are registered to be agricultural lands and are actually used for cultivation of crops. It is further held that, if such lands are included within the extended Corporation limits, the Land Revenue Act would cease to be applicable. We respectfully agree with the proposition but as noted supra, the issue is whether there is a violation of the conditions of grant which was not the subject matter of the said ruling. Hence, the said ruling is also inapplicable in the facts and circumstances of the case as one of the issues involved in the instant writ petition is the maintainability of the petition which is filed after issuance of show cause notice and submission of objections.

8. M. Muninarayana Swamy and Another Vs. State of Karnataka & Others ILR 2012 KAR 3428.

This ruling involves the determination of the authority of the Deputy Commissioner to cancel the Khata on the ground that conversion under Section 95 of the KLR Act has not been obtained in respect of lands included within the Town Municipal Council limits. We have no quarrel with the proposition and as noted supra, it is the settled position. The ruling has no bearing on the facts and circumstances involved in the instant case.

9. W.P. No. 5059/2012 - Shri S. Krishnappa Vs. State of Karnataka and Others.

This order pertains to determination of the applicable tax in respect of lands included within the territorial limits of the City Corporation which is not the issue on hand. Further, the finding that the Land Revenue Act is inapplicable, to the lands within the urban area is also settled position and the Court was determining the issue in the background of prayer for transfer of Khata and to collect taxes.

10. Siemens Ltd. Vs. State of Maharashtra & Others (2006) 12 SCC 33 [LQ/SC/2006/1204] .

This ruling is by the Hon'ble Apex Court and pertains to maintainability of writ petition when the statutory authority has already formed an opinion regarding the liability of the assessee and a reading of the order revealed that what remains was a mere quantification. In the instant case, it is not the case of the petitioner that the show cause notice conveys any pre-determination of the cause put against the petitioner. On the other hand, reliance is on an extraneous document, to be more precise, an inter departmental communication, from the first respondent to the second respondent, which merely expresses an opinion of the author of the said communication, that there appears to be violation of conditions of grant and requires the second respondent competent authority to conduct an enquiry. The mere expression of opinion without entering upon the merits and coupled with a request to conduct an enquiry can by no stretch of imagination be concluded as a pre-determination. The Hon'ble Apex Court has been pleased to render a finding of fact that the material before it clearly demonstrates that the statutory authority had already made up it's mind. In the instant case, the petitioner is unable to demonstrate that the second respondent has made up his mind. It is canvassed that such a conclusion should be drawn only on the ground that the author of the letter is senior to the second respondent though they belong to the same cadre. A reading of paragraph 11 dissipates necessity for an extensive consideration. The Hon'ble Apex Court has held that a bare perusal of the order impugned coupled with the statement made in the counter affidavit, it is satisfactorily demonstrated that the authority had already applied its mind and has formed an opinion. In the case on hand, it is not the case of the petitioner that its version has been made known to the either of the respondents and that despite its stand being made known, they have concluded contrary to the material placed before it.

In the instant case, the petitioners have not merely submitted their detailed objections but also additional statement of objections and when the matter was at the stage of appreciating the objections, the instant writ petition is filed.

Though the petitioner has placed along with the compilation ruling reported in (2010) 13 SCC 427, [LQ/SC/2010/1200] neither a case that the show cause notice ambiguous nor a charge that the second respondent has already pre-determined, the issue is canvassed before the Court. At the cost of being repetitive, the allegation of pre-determination is based on the letter dated 03.08.2017 which is impugned before the Court.

As noted in the rulings relied upon by the respondent State/appellants inter departmental communications cannot be the basis for maintaining a writ petition (see paragraphs 31 and 32). Hence, the said ruling is inapplicable in the facts and circumstances of the case.

11. Oryx Fisheries Private Limited Vs. Union of India & Others (2010) 13 SCC 427 [LQ/SC/2010/1200] .

The above ruling also proceeds on the material available whereby, it was demonstrated that a decision was taken that contrary to the proceedings of the meeting it was stated that it has been convincingly proved that the Cargo was a defective Cargo and as such, it was held by the Court that the notice itself demonstrated a totally closed mind at the stage of show cause notice itself. As noted supra, the facts in the instant case, do not disclose such a case. Hence, the said ruling is inapplicable in the facts and circumstances of the instant case.

12. Joint Collector Ranga Reddy District and Another Vs. D. Narsing Rao & Others (2015) 3 SCC 695 [LQ/SC/2015/53] .

This ruling relates to exercise of suo-moto power where no limitation is prescribed before invoking the said power. It is held that such suo-moto power ought to be exercised within the reasonable period.

Though it is contended that there is a delay of 54 years, the basis for such quantification is not provided by the petitioner either in the pleadings or in the course of arguments. As rightly contended by the learned Addl. Advocate General, the issue requires determination of factual aspects in the absence of any admitted position, in respect of facts and the said issue requires determination after hearing the parties. As rightly submitted by the Addl. Advocate General the date on which the violation was committed by the petitioner, the date on which it became known to the respondents are factual issues and even to this date, the petitioner has not furnished any of the dates. Hence, the said ruling is inapplicable in the facts and circumstances of the case. We make it clear that, we have no quarrel with the proposition as settled by the Hon'ble Apex Court.

13. Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim (1997) 6 SCC 71 [LQ/SC/1996/1333] .

This ruling is yet again a reiteration of the proposition as dealt supra.

14. Uttam Namdeo Mahale Vs. Vithal Deo and Others(1997) 6 SCC 73 [LQ/SC/1997/835] .

This ruling is yet again with regard to the aforesaid proposition relating to limitation.

15. Nekkanti Rama Lakshmi Vs. State of Karnataka & Others 2018 (6) Kar. L J 792.

The issue involved in this ruling is apparent on a reading of paragraph 7 and yet again pertains to question of exercise of suo-motto powers within a reasonable period wherein, the Hon'ble Apex Court has been pleased to hold that the application for restoration under Section 5 ought to be made within a reasonable period and that the delay of 25 years vitiated the application. As noted supra, though it is vehemently canvassed that the action is vitiated by delay particulars demonstrating any admitted position, is neither forthcoming from the petition nor furnished during the hearing. In that view of the matter, the contention cannot be accepted at the present stage and more so, in view of the order that is to be passed in the instant petition."

21. We have given our anxious consideration to the submissions advanced by the learned Addl. Advocate General and the learned counsel for the respondent and perused the entire material on record and carefully considered the order passed by the learned Single Judge.

22. The point that arises for consideration and disposal of the appeal is;

"1) Whether the learned single judge was right in entertaining the writ petition

2) Whether the inter departmental communication dated 03.08.2017 (Annexure-Q) to the writ petition constitutes a cause of action to maintain a writ petition"

23. Having heard the learned counsels more particularly, in the light of allegation of malafides on the part of the appellants, this Bench had summoned the records, both from the appellants and from the Urban Development Authority (a party in the accompanying Contempt Petition.) A perusal of the records, more particularly the Development Authority, which is arrayed as respondent in the Contempt Petition CCC No. 100164/2020, leaves much to desire. As both the writ appeals by the State and the Contempt Petition by the respondent were jointly heard, we had the benefit of submissions of learned counsel for the Development Authority. On perusal of the file, we found a two page office note and communication dated 28.10.2015 addressed to the Manager of the petitioner's Company and an undated chalan of the Authority acknowledging the receipt of bearing No. 634230 and dated 16.10.2015 with the seal of Kotak Mahendra Bank and an endorsement "will be subject to realization" dated 19.10.2015. A communication dated 18.09.2015, the intimation by the Company dated 08.09.2015, an undated application in the prescribed format along with copy of the record of rights and M.R. extracts and a truncated copy of the proceedings of the Deputy Commissioner dated 28.01.1965. Another copy of the proceedings of the Deputy Commissioner dated 13.05.1966. A truncated copy of the proceedings of the Deputy Commissioner dated 02.07.1965 and a proposed layout plan. What could be deduced is that though the receipt of the intimation is dated 08/9/2015 as mandated under sub-section (3) of Section 14-A of the Karnataka Town and Country Planning Act, 1961 is found in the records, the receipt of the charges as mandated under the sub-section is on 19.10.2015 only.

Section 14-A(3) of the Karnataka Town and Country Planning Act, 1961 as it then stood reads as under:-

"14A. Change of land use from the outline development plan.

(1) *****

(2) *****

(3) Notwithstanding anything contrary contained in the Act, if the change in land use or development is from commercial or industrial to residential or from industrial to commercial and the stipulated fee is paid and the Local Planning Authority is informed prior to effecting the change, the permission for such change of land use or development shall be deemed to have been given."

Conclusion:

24. It is pertinent to note that the above provision which came to be inserted by Act 1 of 2005 with effect from 14.02.2005 came to be repealed and deleted with effect from 10.09.2015. On a prima-facie reading of the provision, it appears that the mandate of the provision is that the stipulated fee is to be paid along with the intimation, prior to effecting the change and is communicated to the authority, the change of land use or development is deemed to be given. In other words, the intimation and the payment of charges is mandatory for the applicant to avail the benefit of the deeming provision. In the instant case, the alleged intimation is dated 08.09.2015, the provision is repealed on 10.09.2015 and the charges are allegedly deposited on 19.10.2015 i.e. nearly 40 days after the provision stood repealed/omitted from the statute. Whether the same amounts to compliance with the provisions of sub-section (3) is not been gone into by this Bench in view of the final order to follow.

25. The crux of the argument on behalf of the petitioner is that the proceeding is without jurisdiction and that it is vitiated by malafides and delay and laches.

26. The pleadings in the writ petition in our considered opinion do not reveal any ground in support of the same. It is settled law that delay and laches involves determination of factual aspects. Neither the order of the learned Single Judge nor the writ petition pleadings reveal any such admitted facts, that is, as to when the petitioner breached the grant conditions, as to when the breach of the grant conditions became known to the State are not forthcoming either in the pleadings or in the order of the learned Single Judge. The contention that there is a delay of 54 years is not a fact supported by any details. This argument also pre-supposes an admission on the part of the petitioner that it has indeed breached the conditions of grants. On the other hand, it is the case of the petitioner that there is no breach of the conditions. In one breadth, the petitioner contends that there is no breach of the conditions and in the same breadth; it endeavors to place reliance on the proposition of delay and laches. The petitioner cannot be permitted to approbate and reprobate. If it is the case of the petitioner that the impugned action is vitiated by delay and laches the onus was on the petitioner to provide the material particulars relating to the breach. In the absence of such material particulars, the contention that the impugned proceedings are vitiated by delay and laches cannot be countenanced. That apart, it is not the case of the petitioner that the State has acknowledged the breach of the grant conditions on any particular date and after acknowledging the same, the State has remained a mute spectators and has not even lifted a little finger in protest in order to enable this Court to render a finding of acquiescence on the part of the State. In the absence of such admission by the State and coupled with the failure of the petitioner to furnish such material particulars, in our considered opinion the said contention requires to be negated and is accordingly rejected for the present.

27. As regards the other limb of argument that, no jurisdiction is vested in the second respondent to adjudicate the issue of violation of grant conditions is yet again a matter that requires an adjudication after a due enquiry. Prima-facie, as contended by the learned Addl. Advocate General, the provisions of the land grant rules, vest the Authority to conduct an enquiry to revoke or cancel a grant in the granting authority. In the instant case, there is no ambiguity and in fact in paragraph 3 of the writ petition it is pleaded as under:-

"3. The petitioner submits that with the object of encouraging establishment of a factory in Dharwad region the respondent No. 1 decided that the land be granted in favour of the petitioner. Accordingly, on the directions of the State Government vide its letter dated 07.09.1964 and Government order dated 05.01.1965, the 2nd respondent issued order dated 28.01.1965 granting land in Sy. No. 88 measuring 80.27 acres and 8.26 acres in Sy. No. 89 and photo kharab land measuring 10 guntas in Sy. No. 89 of Rayanala Village in favour of the petitioner (Emphasis supplied by this Court). A copy of the grant order is produced herewith as ANNEXURE-A. Thereafter agreement in Form F was executed between the petitioner and the Tahasildar, Hubli, on 05.03.1965. A copy of the said agreement is produced herewith as ANNEXURE-B. Pursuant thereto, the petitioner sought for conversion of the lands from agricultural to industrial purposes and the 2nd respondent vide order dated 02.07.1965 granted conversion of land to industrial purposes and called upon the petitioner to pay conversion fine at Rs. 500/- per acre. A copy of the said order is produced herewith as ANNEXURE-C. The petitioner submits that it has established the factory in the land in question by utilizing around 70% of the allotted land for industrial activities."

28. From a reading of the above, it is apparent that even as per the understanding of the petitioner, the order dated 28.01.1965 granting the lands in favour of the petitioner is issued by the second respondent. In that view of the matter, we do not find any prima-facie ground substantiating the contention advanced and pertaining to the jurisdiction of the second respondent. In that view also, we are of the considered opinion that, the aspect as to whether the grant is by the State Govt. or is by the second respondent needs to be gone into and a factual finding has to be rendered after not only looking into the relevant laws but also the circumstances and facts involved in the case on hand. Admittedly, the said issue is pending before the 2nd Respondent/Appellant.

29. The third limb of argument advanced on behalf of the petitioner is that, the proceedings are designed to harass the petitioner. If the authority initiating a proceeding, is well within its jurisdiction and is vested with the duty to enquire, then such a proceeding can by no stretch of imagination be construed as an harassment. If the Authority fails to discharge it's duty, then the same would amount to an abdication on the part of the Authority. It is not the categorical case of the petitioner that its actions do not amount to breach of the grant conditions. On the contrary, an argument is canvassed that the impugned action/enquiry directed by the first appellant, on the basis of a purported breach of the grant condition, is vitiated by delay and laches. The petitioner cannot blow both hot and cold. That apart, as rightly pointed out by the learned Addl. Advocate General the writ petition pleadings are bereft of any particulars of malafides. It is settled law that malafides or misfeasance or malfeasance are required to be pleaded by providing material particulars. We have closely scrutinized the pleadings. Apart from a stray use of the word harassment, no other particulars are pleaded to enable the Court to adjudicate the issue. Hence, the said contention also requires to be rejected at this stage and is accordingly rejected.

30. Lastly, it is contended that the writ petition was triggered by the first respondent's communication addressed to the second respondent and dated 03.08.2017 which clearly demonstrates that the subject matter of the enquiry is already predetermined. A few dates are relevant for consideration and appreciation of the contention. The show cause notice is dated 30.11.2018 and one of the documents referred to and relied upon is the letter dated 03.08.2017 and the reply/objections by the petitioner to a show cause is submitted on 22.12.2018. Notice of hearing dated 25.01.2019 and 13.02.2019 have been issued. Thereafter on 21.02.2019 a further statement of objection is also filed and thereafter, the petitioner appears to have preferred the writ petition in the second week of March, 2019 i.e. after a full four months after the issuance of the show cause notice and after the petitioner had not only submitted his objections (22.12.2018) but also further objections on 22.02.2019 and after hearing had commenced. The learned counsel for the petitioner would submit that during the course of the enquiry, they came across the letter dated 03.08.2017 by which the first respondent had directed the second respondent to enquire into the alleged breach of grant conditions. While so directing the second respondent, the first respondent has opined that the petitioner has violated the grant conditions.

The letter reads as under:-

31. After careful reading of the same, we are afraid that the apprehension of the petitioner is misplaced. By the letter, the first appellant has narrated certain instances on the basis of which, it is opined that there appears to be a breach of grant conditions. But what is relevant and is to be noted is that the first appellant has stated that the due process of law must follow. The letter in particular refers only to violation of grant conditions whereas, the show cause notice also speaks about violations of provisions of the ULC Act.

32. Be that as it may, though the letter is dated 03.08.2017, as noted supra the show cause notice is issued on 30.11.2018 i.e. almost after a year and half, after the letter had been addressed to the second respondent. The show cause notice discloses that the said letter is not the sole factor on which the show cause notice is issued. It also refers to other proceedings and communications as the basis for the show cause notice. If, as contended by the petitioner, the issue was predetermined, the second respondent need not have waited for the passage of nearly 16 months to issue the show cause notice. This singular fact would suffice to demonstrate the independence of the authority. If the authority was consummated by a servile mentality or as contended by the petitioner was acting under the dictate of the superior authority, then he would have acted with alacrity. On the contrary, the show cause notice would disclose application of mind by the second appellant, who has detailed the basis for the enquiry.

33. In our considered opinion, the learned single judge erred in nipping the enquiry on the basis of the proceedings being vitiated by delay and laches, as there are no admitted dates or facts enabling the Court to arrive at such a conclusion. The finding is also not supported by any reasoning in the order impugned. Further, in our opinion, the Learned Single Judge has misdirected itself with the issue of Section 95(2) KLR Act. The learned Single Judge also failed to appreciate the provisions of Rule 43 of the Land Revenue Rules or Rule 25 of the Land Grant Rules, 1961. Be that as it may, as noted by us the petition pleadings do no support any of the contentions canvassed by the petitioner. The observation of the learned Single Judge in paragraph 50 is also not appealed by the petitioner.

Paragraph 50 reads as under:-

"50. During the course of arguments, learned counsel for the petitioner and learned Additional Advocate General have not made any submission in respect of relief claimed in I.A. According to the petitioner, the case is still at the stage of approval of layout plan. It is not the case of the petitioner company that it had applied for permission to sell the land and the HUDA or concerned authority had refused to grant permission to sell the land. The petitioner has not made out any grounds that there is no need to take permission from the concerned authority to sell the land. Under these circumstances, the petitioner is required to seek necessary permission from the concerned authority in accordance with law. Under these circumstances there are no valid grounds. Hence, the following:

(Emphasis supplied by this Court)

ORDER

The I.A. stands rejected. However, it is made clear that the petitioner is at liberty to approach the competent authority for seeking necessary permission to sell the property."

34. The observation on the other hand places a yoke on the petitioner to take permission to alienate the lands. This finding not having been appealed against and petitioner remains bound. Be that as it may, the learned Single Judge failed to appreciate the law as it stands with regard to maintainability of the writ petition having due regard to the facts and circumstances involved in the instant case. In that view of the matter, there is substance in the contention of the learned Addl. Advocate General that in the facts and circumstances involved in this case, the writ petition was premature and not maintainable and the learned single judge erred in terminating an enquiry that had ripened, with both parties having disclosed their respective stands on which adjudication was required. None of the rulings relied on by the petitioner involve similar facts and circumstances as involved in the instant writ petition. On a close scrutiny of the rulings, the same have been rendered after the facts have been established in the respective cases. As noted by us, the pleadings as extracted supra in paragraph 26 prima-facie demonstrates a case contrary to the case argued and canvassed by the learned counsel for the petitioner. In that view also, the order of the learned Single Judge holding the writ petition as maintainable, in our considered view is unsustainable and contrary to the settled law.

35. The contempt petition complaining the disobedience of the order dated 21.02.2018 passed in W.P. No. 105734/2016 and praying the Hon'ble Court to summon the guilty and punish the same for disobedience of the order of this Court. The instant contempt petition is filed on 23.10.2020. The writ appeal is preferred on 11.12.2020. The writ appeal is directed against the order in W.P. No. 106705/2019 which is assailed by the appellants herein and it is seen that the instant appellants are not arrayed as parties in W.P. No. 105734/2016 and only the Urban Development Authority has been arrayed as party. The show cause notice has been issued prior to filing of the contempt petition and enquiry had in fact commenced and was pending when the writ petition came to be filed. Though the orders are rendered in separate writ petitions, the subject matter of the writ petitions, namely the lands involved are one and the same. It cannot be denied that any findings in the enquiry would have certainly had a bearing on the actions of the contemnor who is not a party in the proceedings involving the appellants. At this juncture, we are also constrained to observe that the piecemeal approach of the petitioner cannot be appreciated. In that view of the matter and in the light of the final orders disposing off the writ appeal, we are of the considered opinion that the contempt proceedings are required to be closed for the present. Hence, the following:-

ORDER

i. The writ appeal is allowed.

ii. The order of the learned Single Judge is set-aside.

iii. The matter is remitted back to the second respondent for hearing and disposal within three months from the date of receipt of the certified copy of the order.

iv. The parties shall appear before the second respondent on 10.12.2021 without waiting for any notice of hearing.

The writ appeal stands ordered accordingly.

The Contempt Proceedings are closed for the present with liberty to the Complainant to file a fresh petition, if it deems fit and necessary after the disposal of the enquiry as directed herein above.

It is made clear that the observations made herein above are for the purpose of disposal of the appeal and the writ petition and shall not be construed as a pronouncement on the merits of the claims of the parties.

All contentions are left open to be urged by the petitioner and adjudicated by the second respondent including the contention regarding jurisdiction of the second respondent to adjudicate the issue of violation/breach of conditions of grant.