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Dodde Gowda Kapani Vs. State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 870 of 1961
Judge
Reported inAIR1964Kant55; AIR1964Mys55; (1966)1MysLJ260
ActsEvidence Act, 1872 - Sections 114; Land Acquisition Act, 1894 - Sections 4, 6, 5-A, 5-A(1) and 5-A(2)
AppellantDodde Gowda Kapani
RespondentState of Mysore and anr.
Appellant AdvocateH.B. Datar, Adv.
Respondent AdvocateD.M. Chandrasekhar, High Court Government Pleader
Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 227: [r.b. naik, j] offence under section 12 (2) r/w section 13 (1)(d) of prevention of corruption act, 1988 - revision against rejection of application for discharge - allegations of abuse of official position - sanction of credit facilities by corrupt and illegal means - conspiracy and criminal misconduct - financial loss to the complainant bank - material on record to proceed against the accused - held, since it is not obligatory at the stage of the trial to consider in detail and hold that the defence if proved would be incompatible with the offence of the accused or not and standard of test is to be finally applied at the time of judgment while deciding, whether the accused is guilty or not, at this stage the court has..........vitiated. that declaration isaccordingly set aside. 5. it will now be for the deputy commissioner toproceed from the stage when he dismissed ex parte theobjections of the petitioner to the acquisition. since anyhow the deputy commissioner has now to make a reportcontaining his recommendation on the objections of thepetitioner and since it is very probable that the deputycommissioner who dealt with the matter on may 12, 1960is no longer there, we direct that the deputy commissionerwho has now to deal with the matter shall afford a hearing to the petitioner and that he shall hear him aftergiving intimation to him of the date of hearing. it isalso made clear that the notification under section 4 shall stand undisturbed. 6. in the circumstances, there will be no order as to costs.7......
Judgment:

Somnath Iyer, J.

1. This concerns proceedings relating to the acquisition of a property belonging to the petitioner. After the notification under Section 4 of the Act was published, the petitioner objected to the acquisition and when he was not afforded a hearing under Section 5A of the Act, he approached the Government who directed the Deputy Commissioner to afford that opportunity to the petitioner and to proceed with the matter according to law. When the matter came back before the Deputy Commissioner in that way, the case was posted to 16-3-1960. It was adjourned to 15th April 1960, again to April 28, 1960 and again to May 12, 1960. On the last date of hearing the order made by the Deputy Commissioner was as follows:

'12-5-60, Case called. Counsel absent. The objection dismissed ex parte.

lnd/-

xx xxx

L. A. 0.'

2. It is asserted by the petitioner that when the case was adjourned from April 28, 1960 to May 12, 1960, no intimation of that date of hearing was given either to the petitioner or his counsel. His case is that on April 15, 1960, on behalf of the petitioner, an adjournment was prayed for and that the matter was accordingly adjourned to April 28, 1960 and that on April 28, 1960 when both the petitioner and his counsel proceeded to the office of the Deputy Commissioner they found that the Deputy Commissioner was absent from headquarters. What is slated In the affidavit of the petitioner is that they were informed by the concerned clerk that they would be intimated about the adjourned date of hearing in due course. These allegations made by the petitioner in his affidavit are repudiated in the counter affidavit produced of which the deponent is an under-secretary of the State. What is stated in that counter affidavit is that the counsel for the petitioner was intimated that the matter had been adjourned to May 12, 1960. We do find in the proceedings of the Deputy Commissioner an entry to the effect that when the case was adjourned from April 28, 1960 to May 12, 1960, notice of the adjourned date of hearing was issued to the counsel.

3. In that state of the materials before us, it would not be possible for the petitioner to contend that neither he nor his counsel had information about the adjourned date of hearing. If the proceedings of the Deputy Commissioner state that intimation was issued to the counsel, we must presume that that intimation was issued.

4. But the fact that we can come to this conclusion does not mean that this writ petition does not succeed. Under Sub-section (2) of Section 5A, the Deputy Commissioner who receives an objection under Sub-section (1) is under a duty to give the objector an opportunity of being heard in person or by a pleader and to make such further enquiry as he thinks necessary and then to submit the case for the decision of the Government together with the record of the proceedings held by him and a report containing his recommendation on the objections. If the objector and his counsel were both absent on May 12,1960, all that can be said is that the Deputy Commissioner had afforded the opportunity to the petitioner andhis counsel to be heard in person and that in that regardthere was nothing more which remained to be done byhim. But it was surely not within the competence of theDeputy Commissioner merely on the ground that the petitioner and his counsel were absent to dismiss the objection ex parte as he purported to do. What he had to dowas to submit a report to the Government containing arecommendation for the decision of the Government whichhe did not do. That being so, the essential step enjoinedby Section 5A (2) was not observed by the Deputy Commissioner in this case with the result that the declarationmade under Section 6 stands vitiated. That declaration isaccordingly set aside.

5. It will now be for the Deputy Commissioner toproceed from the stage when he dismissed ex parte theobjections of the petitioner to the acquisition. Since anyhow the Deputy Commissioner has now to make a reportcontaining his recommendation on the objections of thepetitioner and since it is very probable that the DeputyCommissioner who dealt with the matter on May 12, 1960is no longer there, we direct that the Deputy Commissionerwho has now to deal with the matter shall afford a hearing to the petitioner and that he shall hear him aftergiving intimation to him of the date of hearing. It isalso made clear that the notification under Section 4 shall stand undisturbed.

6. In the circumstances, there will be no order as to costs.

7. Petition allowed.


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