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JUSTICE N KUMAR OBSERVES LAND MAFIA- LEGAL ADVISORS MAFIA- GOVERNMENT INACTION- GOOD DEVELOPMENTS

In The State Of Karnataka VS H.B. Munivenkatappa 2007 (4) KarLJ 439 JUSTICE N KUMAR OBSEERVED:- 

GOVERNMENT AND PUBLIC DUPED BY OFFICIALS
“The officials of the Government, the advocates who are conducting the cases on behalf of the Government and others have let down the interest of the Government and public. Under these circumstances, I am of the view it would be appropriate to refer the entries in the original ledger book where Form No. 7 is noted and orders passed by the Land Reforms Tribunal, Bangalore South Taluk in all those cases at any rate as contained in this book, for enquiry to the aforesaid committee which may throw some light on the way the tribunal, the Government officials and others have discharged their duties in protecting public property, and if illegalities are found to take steps to restore the land to the Government.”


DO NOT REGULARIZE INJUSTICE ON TECHNICAL GROUNDS REMOVE INJUSTICE
“The judiciary is respected not on account of its power to regularize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. If appeals brought by the Government are lost on account of delay, no person is individually affected, but what in the ultimate analysis suffers is, the public interest. The law of Limitation is no doubt the same for private citizen as well as for Governmental authorities. Government, like any other litigant must take the responsibility for the acts or omissions of its officers. But some what different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to the acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. On account of impersonal machinery, no one Page 0797 incharge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal and the inherited bureaucratic methodology imbued with the note-making, file pushing and passing on the buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represent collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Refusing to condone the delay can result in a meritorious matter being thrown out, at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a case would be decided on merits after hearing the parties. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. The technicalities of procedure should yield to considerations which would promote public interest and substantial justice. The Courts should decide the matters on merits, unless it is hopelessly without any merit.”


DECREE WITHOUT JURISDICTION IS NULLITY
“It is also a fundamental principle, that a decree passed by the Court without jurisdiction is a nullity. Its validity can be set up whenever and where ever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. The defect of jurisdiction whether it is technical or territorial or whether it is in respect of subject matter of action, strikes at the very authority of the Court to pass any decree and such defect cannot be cured even by consent of parties. Nullity has to be understood in the sense that it is ultra vires the power of the court passing the decree and not merely avoidable decree. If the decree strikes at the jurisdiction of the Court or the Court lacks jurisdiction, it strikes at the very root of the authority to pass the order or the decree. The decree passed by such a Court is a nullity and non est.”

PUBLIC PROPERTY NOT HANDLED PROPERLY
In The State Of Karnataka VS H.B. Munivenkatappa 2007 (4) KarLJ 439 JUSTICE N KUMAR OBSEERVED:- “The material on record discloses at every stage the persons who were entrusted with the responsibility of protecting the public property have let down the Government. The way the litigation has been fought and the way the Government representatives and their counsel have let down the public interest, is shocking. When the matter was brought to the notice of the Lokayuktha, it issued a clean chit to those officials saying that the public interest has not suffered. There cannot be a worst situation than this. A mighty Government rendered helpless by such advise and breach of trust. If the order of the Land Reforms Tribunal exists as contended by the plaintiff, it is clear that the Assistant Commissioner who is the Chairman of the Tribunal has failed to notice the aforesaid statutory provisions which confers no right to the vested land in the inamdar and the Tribunal to grant occupancy rights in respect of a tank bed. He is a party to this order of grant granting public property to the plaintiff. When the suit was filed for Page 0798 declaration of title on the basis of the said document though appropriate defence were taken in the written statement, the same is not pursued as they were expected to and in the result a decree came to be passed. Though it was stated in the written statement filed in the suit, steps would be taken to challenge the order of the Land Tribunal, no writ petition was filed, a serious lapse. The learned Government Advocate who conducted the case on behalf of the Government instead of advising suitably the Government to prefer an appeal, gave his opinion that it is not a fit case for an appeal. The Director of Public Prosecution (Civil) who was expected to apply his mind and take an independent decision has failed to discharge his duties and he has concurred with the opinion given by the learned Government Advocate not to prefer an appeal. It appears thereafter the concerned file did not reach the Law Department nor any opinion was sought from the Law Department. Even when the matter was being agitated in this Court in writ proceedings, advocate who was incharge of these matters appears to have not applied his mind properly.”


PRAISE FOR GOOD OFFICIALS – ALL ARE NOT BAD – LOKAYUKTA’S BLINDNESS
“However, it is heartening to note that there are some officials still left in the administration who have a commitment in life and who think about public good. The said officiate at the relevant point of time did notice that the schedule land is a Government land and it is a 'sarkari kere' and mutation entries cannot be made in the name of the decree holder. They resisted the attempt to get the mutation entries made. It is only when arrest warrants were issued against them for disobeying the decree of a Civil Court, the Government realised the blunder they have committed and the Law Officers who betrayed its trust. Then they have approached the Law Department, sought for their opinion and on consideration of the entire material the Law Department gave its advice on 22.12.2003 to the effect that it is a fit case for preferring the appeal. On 7.1.2004 the Government accorded sanction to prefer the appeal. When Lokayukta was requested to investigate the circumstances in which no appeal was filed earlier, the Lokayukta had issued an endorsement to the effect that there are no laches on the part of any Government servant and that it appears that no loss has been caused to the State. It is thereafter the appeal is filed with an application for condonation of delay.”


LEGAL ADVISORS OF GOVERNMENT GOT BLOW IN THIS CASE
“A beginner in the legal profession would know, that against a judgment and decree of declaration of title, an appeal lies and not a revision. This is the type of legal advise which has been given to the Government over a period of nearly ten years. "It is a case of salt having lost its savour". The judicial Page 0799 process is used to acquire rights over the Government property, a clear case of abuse of judicial process.”

GOVERNMENT FACING CHALLENGES WITH IN/OUT IN LEGAL FIELD
“Karnataka being one of the progressive State in the Union of India, Bangalore being the center of attraction to the whole world, unfortunately, the professional legal advise given to the Government is of this nature. It is no wonder that the value of landed property in Bangalore is more than gold and the real estate business is the most thriving business in the city of Bangalore. The State Legislature has to appoint a Committee to go into this problem of grabbing of Government lands which runs to thousands of acres involving crores of rupees. The said Committee has submitted an interim report blaming the officials and lawyers in-charge of the case and others being a privy to these illegal activities right under the nose of the seat of power. Now that multinational companies are competing with each other to have a foot hold in Bangalore, with the liberalization, globalization and privatization, having its impact on all walks of life in the society, whether the Government is capable of meeting the challenges in the field of law and in protecting its people and its properties, with the kind of legal assistance they have. There is no dearth for legal talent in the State. The problem is the mind to utilise the said talent. This case should be an eye opener to the Government. It is for them to take appropriate steps to overhaul their revenue, and legal department, including the quality of the Advocates they choose to represent them in Courts, if the Government is sincere in protecting the public and its properties.”

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