K. CHANDRA SHEKAR vs STATE OF KARNATAKA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
TH
DATED THIS THE 24 DAY OF JULY, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 15558 OF 2017 (GM-RES)
BETWEEN:
1. K. CHANDRA SHEKAR
S/O. KRISHNAPPA,
AGED ABOUT 70 YEARS,
2. V. SARASWATHI
W/O. K. CHANDRA SHEKAR,
AGED ABOUT 55 YEARS,
BOTH RESIDING AT NO.684,
1ST MAIN ROAD,
SAMPANGIRAMAIAH EXTENSION,
KADUGONDANAHALLI,
BANGALORE-560 045.
…PETITIONERS
Digitally
signed by
SUMA B N
Location:
HIGH
COURT OF
KARNATAKA
(BY SRI. JANARDHAN REDDY.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
VIDHANA SOUDHA,
BANGALORE,
REPRESENTED BY ITS CHIEF SECRETARY
2.
THE COMMISSIONER
KARNATAKA STATE COMMISSION FOR
SCHEDULED CASTES AND SCHEDULED TRIBES,
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MULTISTORIED BUILDING,
BANGALORE-560 001.
3. K. RAMESH (SC)
S/O. SRI. KONDAIAH,
AGED ABOUT 47 YEARS,
R/AT NO.27, 7TH CROSS,
7TH CROSS, SRIRAMPURA,
BANGALORE-560 021.
4. PRAVEEN KUMAR
AGED ABOUT 54 YEARS
REPRESENTED BY
M/S. ATHEENA INFRA BUILD PVT. LTD.,
NO.18, 1ST AVENUE,
OUTER RING ROAD,
BANASAWADI,
BANGALORE-560 043.
…RESPONDENTS
(BY SRI. MAHANTESH SHETTAR, AGA FOR R1
SRI. K CHANDRA MOHAN FOR R2
SRI. PREM KUMAR FOR R3 .,ADVOCATES
V/O DATED 03.08.2023, PETITION AGAINST R4 IS
DISMISSED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDERS DATED 3.3.2017 MADE BY THE HON'BLE KARNATAKA
STATE COMMISSION FOR SCHEDULED CASTES AND
SCHEDULED TRIBES AT BANGALORE IN CASE (KS/SC/ST/
COMMISSION/DISPUTES/CR NO.36/2016-17) CASE
NO.801/2016-17 PENDING BEFORE THE HON'BLE KARNATAKA
STATE COMMISSION FOR SCHEDULED CASTES AND
SCHEDULED TRIBES AT BANGALORE IN CASE NO.801/2016-17
ON HIS FILE AS PER ANNEXURE-D AND ETC.,
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THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL
ORAL ORDER
1. This writ petition is filed by the petitioners, being
aggrieved by the proceedings that have been initiated
and pending consideration before the respondent No.2 -
Commission, seeking following reliefs:
"i) Quashing the orders dated 3/3/2017 made by the
Hon'ble Karnataka State Commission for Scheduled Castes
and Scheduled Tribes at Bangalore in case
(KS/SC/ST/Commissioner/Disputes/CR No. 36/2016-17)
case No.801/2016-17 pending before the Hon'ble Karnataka
State Commission for Scheduled Castes and Scheduled
Tribes at Bangalore in case No.801/2016-17 on his file as
per ANNEXURE-D.
i(a) quash the Annexure -D made by the Hon'ble
Karnataka State Commission of Scheduled Castes and
Scheduled Tribes at Bangalore in case No.
(KS/SC/ST/Commissioner/Disputes/CR No. 36/2016-17)
case No.801/2016-17 pending before the Hon'ble
Commission.
ii) to grant such other writ, order directions as this
Hon'ble Court may deem fit to grant to the petitioners in
the circumstances of the case."
2. Brief facts of the case are:
That petitioners are the absolute owners in possession
and enjoyment of the land bearing Sy.No.78 situated at
Thanisandra Village, K.R.Puram Hobli, Bangalore East
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Taluk. That they have neither entered into any agreement
for sale in respect of the said land nor have they received
any sale consideration from anyone whatsoever in
relation thereof.
3. Things stood thus, respondent No.3 herein filed a
complaint in Case No.801 of 2016 against the petitioner
before the respondent No.2-Commission, claiming that he
had entered into an agreement of sale dated 23.08.2012
with the petitioners and one M/s. Atheena Infra Build Pvt.
Ltd., for purchase of a flat bearing No.304 being
constructed on the aforesaid land bearing Sy.No.78
belonging to the petitioners. That as against the agreed
total sale consideration of Rs.40,00,000/-, he had
allegedly paid Rs.8,00,000/-. That based on said false
and fabricated agreement, he had filed a false petition
before the respondent No.2-Commission, which without
looking into the averments made in the petition, had
blindly registered the case in No.801/2016 and issued
notice calling upon the petitioners to appear before it.
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4. That upon receipt of the said notice, petitioners filed
detailed statement of objections, denying the very
execution of the agreement dated 23.08.2012 and
receiving of any amount much less Rs.8,00,000/- from
the respondent No.3 as alleged. It was also specifically
contented that, respondent No.3 had created and
fabricated the said agreement.
5. That since petitioner No.1 was a senior citizen, he could
not appear personally, but he was represented through
his counsel. Despite bringing the same to the notice of
respondent No.2-Commission, a warrant was issued
against the petitioner No.1.
6. Being aggrieved by the very registration of the aforesaid
case and issuance of warrant, the petitioners are before
this Court.
7. Learned counsel for the petitioners taking this Court
through the records submits that the case of respondent
No.3, even if accepted to be true, would not vest the
jurisdiction with respondent No.2-Commission for
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adjudication, as it is only before competent Court of Civil
jurisdiction, respondent No.3 can seek adjudication of his
rights, as such the relief sought for by the respondent
No.3, cannot be granted by respondent No.2-
Commission. Hence, seeks for allowing of the petition.
8. Heard and perused the records.
9. This is yet another case of illegal usurpation of power and
jurisdiction by the respondent No.2-Commission, which
despite several judgments of the Apex Court and this
Court has been entertaining and passing orders including
issuing warrants in matters which do not fall within its
defined powers and functions. Several of such matters
are unwarrantedly being landed up before this Court only
to repeatedly remind the respondent No.2-Commission of
its powers and functions. Most of the time, respondent
No.2-Commission, is not been represented by any
counsel, leaving little or no assistance in disposing of
such matters.
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10. It is in these circumstances, present petition is being
disposed of, yet again adverting to scope, ambit, power
and functions of the respondent No.2-Commission.
11. The object and purpose of the Karnataka State
Commission for the Scheduled Castes and Scheduled
Tribes Act, 2002 and Rules, 2012 (for brevity 'the Act,
2002') as stated in the preamble, is to provide for
constitution of a Karnataka State Commission for the
Scheduled Castes and Schedules Tribes and to provide for
matters connected therewith or incidentally thereto.
12. Section 3 of the Act provides for constitution of such
Commission consisting of a Chairperson, who has special
knowledge in the matter related to Scheduled Castes and
Scheduled Tribes nominated by the State Government;
two persons, who have special knowledge in matters
relating to the Scheduled Castes and the Scheduled
Tribes nominated by the State Government; One person
belonged to the Scheduled Tribes to be nominated by the
State Government and one person who shall be a woman
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nominated by the State Government; the Director, Social
Welfare or Director, Tribal Welfare shall be the Member
Secretary of the Commission.
13. The term of the office of the Commission and condition of
services of the Chairperson and Members are provided
under Section 4 of the Act, in terms of which, Chairperson
and every Member shall hold the Office for term not
exceeding 3 years, which is subject to the pleasure of the
Government.
14. Functions of the Commission are provided under Section
8 of the Act, which reads as under:
" 8 . Functions of the Commission.- The functions of the
commission shall be as follows,-
(a) to investigate and examine the working of various
safeguards provided in the constitution of India or under any other
law for the time being in force or under any order of the
Government for the welfare and protection of the Scheduled Castes
and the Scheduled Tribes of Karnataka and;
(b) to inquire into specific complaints with respect to the
deprivation of rights and safeguard of the Scheduled Castes and the
Scheduled Tribes of Karnataka and to take up such matter with the
appropriate authorities;
(c) to participate and advise on the planning process of socio
economic development of the Scheduled Castes and the Scheduled
Tribes and to evaluate the progress of their development in the
State.
(d) to make recommendations as to the measures that should
be taken by the State for the effective implementation of
safeguards and other measures for the protection, welfare and
socio economic development of the Scheduled Castes and the
Scheduled Tribes and to make report to the State Government
annually and at such other time as the Commission may deems fit.
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(e) to discharge such other functions in relation to the
protection, welfare, development and advancement of the
Scheduled Castes and the Scheduled Tribes as may be prescribed:
Provided that if any matter specified in this section is dealt with by
the National commission for Scheduled Castes and the Scheduled
Tribes established under Article 338 of the Constitution of India the
State Commission for Scheduled Castes and the Scheduled Tribes
shall cease to have jurisdiction on such matter.
[(f) to recommend to the Government, the necessary
modification in the reservation percentage of sub-classification to
the members of the Scheduled Castes on receipt of new data or
information from the Government.]
15. Powers of the Commission are provided under Section 10
of the Act, which reads as under:
"The Commission shall, while investigating any matter under
section 8, have all the powers of a civil court in trying a suit and in
particular, in respect of the following maters, namely:-
(a) summoning and enforcing the attendance of any person
from any part of the State and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy there of from any
court or office;
(e) issuing Commissions for the examination of witnesses and
documents; and
(f) any other matter which may be prescribed."
16. The Hon'ble Apex Court had in its judgment in the case of
All India Indian Overseas Bank, Scheduled Castes
and Scheduled Tribe, Employees' Welfare
Association and Others v/s Union of India and
others reported in (1996) 6 SCC 606 dealing with a
question, ''whether the Commission had power to issue a
direction in the nature of an interim injunction" arising in
a case involving promotion of employees at various levels
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being denied to the Scheduled Castes and Scheduled
Tribes, referring to Section 8 of the Act, at paragraph
Nos. 5 to 11 has held as under:
" 5. It can be seen from a plain reading of clause (8) that the
Commission has the power of the civil court for the purpose of
conducting an investigation contemplated in sub-clause (a) and an
inquiry into a complaint referred to in sub-clause (b) of clause (5) of
Article 338 of the Constitution.
6. Sub-clauses (a) to (f) of clause (8) clearly indicate the area in
which the Commission may use the powers of a civil court. The
Commission has the power to summon and enforce attendance of any
person from any part of India and examine him on oath; it can
require the discovery and production of documents, so on and so
forth. All these powers are essential to facilitate an investigation or an
inquiry. Such powers do not convert the Commission into civil court.
7. It will be interesting to observe that the Commissions of
Inquiry Act, 1952 grants similar powers to the Commission of Inquiry.
Section 4 and sub-sections (4) and (5) of Section 5 of the
Commissions of Inquiry Act, 1952 which confer such powers are
quoted below:
“4. Powers of Commission.—The Commission shall have the
powers of a civil court, while trying a suit under the Code of Civil
Procedure, 1908 (Act V of 1908), in respect of the following matters,
namely:
(a) summoning and enforcing the attendance of any person and
examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any
court or office;
(e) issuing commissions for the examination of witnesses or
documents;
(f) any other matter which may be prescribed.
5. (4) The Commission shall be deemed to be a civil court and
when any offence as is described in Section 175, Section 178, Section
179, Section 180 or Section 228 of the Penal Code, 1860 is
committed in the view or presence of the Commission, the
Commission may, after recording the facts constituting the offence
and the statement of the accused as provided for in the Code of
Criminal Procedure, 1898 (Act V of 1898), forward the case to a
Magistrate having jurisdiction to try the same and the Magistrate to
whom any such case is forwarded shall proceed to hear the complaint
against the accused as if the case had been forwarded to him under
Section 482 of the Code of Criminal Procedure, 1898.
(5) Any proceedings before the Commission shall be deemed to
be a judicial proceeding within the meaning of Sections 193 and 228
of the Penal Code, 1860.”
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8. In M.V. Rajwade v. Dr S.M. Hassan [AIR 1954 Nag 71 : 55 Cri
LJ 366] the question whether the Commission of Inquiry, by virtue of
the above provisions, could be treated to be a civil court for the
purpose of the Contempt of Courts Act, 1971 came to be considered.
The High Court observed as under:
“It would appear from Section 4 that it only clothes the
Commission with certain powers of a Civil Court but does not confer
on it the status of a Court. It is only under sub-section (4) of Section
5 that the Commission is deemed to be a Civil Court and sub-section
(5) imparts to the proceeding before it the character of a judicial
proceeding. However, these provisions only create a fiction which
cannot extend beyond the purpose for which it is created.”
9. The judgment in the case of M.V. Rajwade [AIR 1954 Nag 71
: 55 Cri LJ 366] was referred to with approval by this Court in Baliram
Waman Hiray (Dr) v. Justice B. Lentin [(1988) 4 SCC 419 : 1988 SCC
(Cri) 941] . The question in that case was whether the Commission of
Inquiry constituted under Section 3(1) of the Commissions of Inquiry
Act, 1952 was a court for the purposes of Section 195(1)(b) Criminal
Procedure Code, 1973. It was contended before the Court that sub-
section 4 of Section 5 of the Commission of Inquiry Act created a
legal fiction by which the Commission of Inquiry was deemed to be a
civil court for all purposes. It was held that the words “for all
purposes” are not there in the first part of sub-section (4) and the
Court cannot, in the guise of interpreting the provision, supply
any casus omissus. The Court went on to say that the purpose of
creating the fiction was reflected in the second part of sub-clause (4),
viz., for the purpose of proceedings under Section 482 of the old Code
and Section 346 of the new Code of Criminal Procedure.
10. Interestingly, here, in clause (8) of Article 338, the words
used are “the Commission shall … have all the powers of the Civil
Court trying a suit”. But the words “all the powers of a Civil Court”
have to be exercised “while investigating any matter referred to in
sub-clause (a) or inquiring into any complaint referred to in sub-
clause (b) of clause 5”. All the procedural powers of a civil court are
given to the Commission for the purpose of investigating and
inquiring into these matters and that too for that limited purpose
only. The powers of a civil court of granting injunctions, temporary or
permanent, do not inhere in the Commission nor can such a power be
inferred or derived from a reading of clause (8) of Article 338 of the
Constitution.
11. The Commission having not been specifically granted any
power to issue interim injunctions, lacks the authority to issue an
order of the type found in the letter dated 4-3-1993. The order itself
being bad for want of jurisdiction, all other questions and
considerations raised in the appeal are redundant. The High Court
was justified in taking the view it did. The appeal is dismissed. No
costs."
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17. Apex Court in the case of Collector Bilaspur vs Ajit
P.K. Jogi and Others reported in (2011) 10 SCC 357 ,
at paragraph Nos.17 and 22, has held as under:
"17. It is evident from Article 338 as it originally stood, that the
Commission was constituted to protect and safeguard the persons
belonging to Scheduled Castes and Scheduled Tribes by ensuring:
(i) anti-discrimination, (ii) affirmative action by way of reservation
and empowerment, and (iii) redressal of grievances. The duties
under clause 5(b) of Article 338 did not extend to either issue of
caste/tribe certificate or to revoke or cancel a caste/tribe certificate
or to decide upon the validity of the caste certificate. Having regard
to sub-clause (b) of clause (5) of Article 338, the Commission could
no doubt entertain and enquire into any specific complaint about
deprivation of any rights and safeguards of Scheduled Tribes. When
such a complaint was received, the Commission could enquire into
such complaint and give a report to the Central Government or the
State Government requiring effective implementation of the
safeguards and measures for the protection and welfare and socio-
economic development of the Scheduled Tribes. This power to
enquire into "deprivation of rights and safeguards of the Scheduled
Castes and Scheduled Tribes" did not include the power to enquire
into and decide the caste/tribe status of any particular individual. In
fact, as there was no effective mechanism to verify the caste/tribe
certificates issued to individuals, this Court in Madhuri Patil v.
Commr., Tribal Development [(1994) 6 SCC 241 : 1994 SCC (L&S)
1349 : (1994) 28 ATC 259] directed constitution of scrutiny
committees.
22. It is only after recording the said findings, the Commission
directed the State Government to verify the genuineness of the ST
certificate obtained by the first respondent and initiate action for
cancellation of the certificate and also initiate criminal action. All
these were unwarranted. As noticed above, the power under clause
5(b) of Article 338 (or under any of the other sub-clauses of clause
5 of Article 338) did not entitle the Commission to hold an inquiry
in regard to the caste status of any particular individual, summon
documents, and record a finding that his caste certificate is bogus
or false. If such a complaint was received about the deprivation of
the rights and safeguards, it will have to refer the matter to the
State Government or the authority concerned with verification of
caste/tribal status, to take necessary action. It can certainly follow
up the matter with the State Government or such authority dealing
with the matter to ensure that the complaint is inquired into and
appropriate decision is taken. If the State Government or the
authorities did not take action, the Commission could either itself or
through the affected persons, initiate legal action to ensure that
there is a proper verification of the caste certificate, but it cannot
undertake the exercise itself, as has been done in this case.”
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18. Following the aforesaid judgments of the Apex Court, the
Co-ordinate Bench of this Court in M B
Siddalingaswamy v/s State of Karnataka and
Others in WP No.63405/2016 (SC-ST) dated
23.11.2020 again dealing with the issue of promotion of
an employee belonging to Scheduled Caste to the cadre
of First Division Assistant, in which the Commission had
issued certain directions, extensively dealing with the
purpose and object of Article 338 of the Constitution of
India and Sections 8 and 10 of the Act, at paragraph
Nos.13 and 14, has held as under:
"13. …. A reading of the afore-extracted Sections 8 and 10
of the said Act, makes it abundantly clear that the Commission is
not empowered to adjudicate upon the rights of parties. The power
vested with the Commission of Inquiry and submission of a report
cannot be extended to adjudicate all disputes between individual
and a State or a statutory authority. The powers conferred do not
contemplate that the Commission can examine matters like a civil
Court and adjudicate dispute and pronounce its decision either
interim or final or issue a direction of the kind that is issued in the
case on hand.
14. The Commission cannot be construed to be a Tribunal or
a forum discharging the functions of a judicial character or Court.
Article 338 of the Constitution itself does not entrust the
Commission with the power to take up the role of a Court or an
adjudicatory Tribunal and determine the rights of parties inter se."
19. These enunciations by the Hon'ble Apex Court and this
Court, defining and clarifying the powers and functions of
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the Commission, does not appear to have been perceived
and sensitized by respondent No.2-Commission.
20. Reverting to the facts of the instant case, the complaint
filed before respondent No.2-Commission, reads as
under:
'MEMORANDUM OF COMPLAINT UNDER SECTION 8 OF THE
KARNATAKA STATE COMMISSION FOR S/C AND S/T Act:
That the above Complainant most humbly begs to submits as
follows:-
(1) The Complainant submits that the Complainant hails from
S/C Caste and the Caste Certificate furnished for the kind
information as ANNEXURE No.1 along with Photo. The Complainant
is permanent resident of the aforesaid cause title address and
ក
also under the care of his Advocate, Shri. Premkumar Advocate,
No.122, Mahesh Maeket, Bengaluru-560 055.
(3) The Complainant most humbly begs to submits, that the
complainant was in search of accommodation and at the same, the
Respondents s were displayed their 'Bill Board' at Banaswadi
inviting the general public to avail their proposed Apartment(s) for
sale. Accordingly the Complainant had also visited their office/site,
since interested to purchase a flat with them.
(4) The Complainant submits, based on the display for sale
and also sale of flats to the public by the Respondents, sale
negotiation was held as proposed for sale, finally the Respondents
were proposed to sell and the Complainant was ready to purchase
and the same was drawn a SALE AGREEMENTand executed by the
Respondents on 23-08-2012 at Bangalore and also duly registered
before the Sub-Registrar, Banaswadi vide their registration
No.1511/1213 dated 09-10-2012. A copy of the Sale Agreement is
furnished as ANNEXURE No.2 for the kind information of the
Hon'ble Court.
(5) Accordingly the Complainant had paid the following money
as part of sale consideration as advance as demanded by the
"respondents, which will be adjusted at the final sale consideration
amount, as soon as the completion of the Housing/Apartment
reject, but not later than 1(one) years as assured committed and
promised by the respondents
(6) The Complainant submits, that the Respondents are well
aware of the facts that the Complainant hails from depressed class,
since the Respondents had collected the Complainant's caste
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certificate for credit through Bank, even during the sale proceedings
and consideration discussion, the complainant had duly furnished
the community certificate to the Respondents and the same is part
of sale proceedings with due information to the Respondents in this
case.
(7)The Complainant submits, the Respondents had collected
a sum of Rs.11 lakhs (Eleven lakhs) ad advance and the same will
be adjusted with the final sale consideration amount, with the
assurance, promise and commitment that the flat will be ready
within one year, from the date of sale agreement (i.e., 23-08-2012)
due on or before 23-08-2013. The Respondents failed to consider
their respective commitments, assurances and promises, since the
Respondents refusing to hand over the assured housing flat,
allotted to the Complainant in this case, well knowing the facts that
the Complainant hails from depressed class and also poor
economical status.
(8) The Complainant most humbly submits by taking undue
advantage of the social position of the Complainant, the
Respondents refusing to entertain through Cell and reusingf to
admission in their office/plats, practicing untouchability by refusing
the allotment of flat as agreement as per the Sale Deed dated 23-
08-2012
(9) The Complainant most humbly begs to submits that
aforesaid illegal and immorality of act of the Respondents amounts
to atrocity on SC and the Respondents are deserves for criminal
action, including huge compensation for having incurred huge
financial loss and also humility done by the Respondents who are
deserved to be dealt under Atrocity Act with the best interest and
welfare of Complainant in this case.
(10) The Complainant most humbly submits that the
respondents are bound to provide the agreed accommodation
forthwith, in the same locality or else to pay compensation to the
tune of Rs.20 lalhs, the prevailing market rate of the a greed
accommodation, to the Complainant in this case as a good gesture.
PRAYER
Wherefore, the Complainant most humbly prays to the
Hon'ble Court be pleased to:-
(a) direct the Respondents to provide with the agreed house
accommodation and to safe guard the Complainant interest and
welfare who is a S/C community member:
(b) to inquire into the complainant's a complaint with regard
to atrocity committed financially and socially and direct the
Respondent fo consider compensation of Rs.20 lakhs as loss
sustained by SC member; and :
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(c) any other relief or reliefs as the Hon'ble Commission
considered deem fit and proper in the circumstances of the case to
meet the ends of justice and equity"
21. Relevant portions of statement of objections filed by the
petitioners herein before the respondent No.2-
Commission reads as under:
" II. The complaint one filed by the Complainant is not
maintainable either in law or on facts and the same is liable to be
dismissed in limine.
III submitted that, the Complainant by virtue of filing the above
complaint, has sought for issue of directions against the Respondents
to house accommodation to him and to initiate proceedings against
the Respondents under the head of Atrocity Act., and also sought for
compensation to the tune of Rs.20,00,000/-. Said complaint is not
maintainable for the following reasons:-
1. It is submitted that, the Complainant is a stranger and these
Respondents even to this day do not know as to who the Complainant
is and in what way they are related to the transaction of which they
are not parties? When such being the case question of entering into
the alleged agreement of sale dated 23.08.2012, receiving the
advance amount from him by these Respondents would never arise,
accordingly the Complainant is not entitled to any equitable relieves
at the hands of this Hon'ble commission.
2. It is submitted that, with all probabilities, the Complainant
must have misusing his caste has filed the above complaint before
this Hon'ble commission in order to gain sympathy and to snatch a
favourable order.
3. It is submitted that, after receiving the notice from this
Hon'ble commission, these Respondents have verified the records
produced by the Complainant before this Hon'ble commission and
came to know that the Complainant has produced a self
created/fabricated agreement of sale dated 23.08.2012 alleged to
have been executed by these Respondents as the owners and M/S
ATHEENA INFRA BUILD PVT.. LTD., represented by Mr.Praveen Kumar
(Respondent No.1) as a builder in favour of the Complainant herein in
respect of flat bearing No.304 said to have been constructed in Sy.
No.78 of Thanisandra Village. Interestingly none of these
Respondents not even the Complainant and the Respondent No.1
have signed the alleged agreement of sale dated 23.08.2012 and
even now the said land is lying vacant, no such construction has come
up as mentioned in the agreement of sale, which itself goes to show
that the said document has been created by the Complainant and the
Respondent No. I without the knowledge of these Respondents. When
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such being the case, question of receiving the advance amount by
these Respondents from the Complainant under the alleged
agreement of sale dated 23.08.2012 and claiming the same by the
Complainant would never arise.
4. It is submitted that, it was a fact that the Respondent No. 1
had entered into an agreement of sale dated 17.05.2012 with these
Respondents under which he has agreed to purchase 7200 Sq.feet of
land in Sy.No.78 of Thanisandra Village within 3 months thereof.
However for various reasons including an account of failure on the
part of the Respondent No.1 in getting the sale deed executed by
paying the balance sale consideration amount, the agreement of sale
dated 17.05.2012 did not materialized and accordingly the
Respondent No.1 on one hand and these Respondents on the other
hand have entered into a cancellation of the agreement of sale,
thereafter these Respondents have sold the property in favour of
Mr.S.Poorna Seenivasan and Mr.N.Suresh under the registered sale
deed dated 05.08.2014, for which the Respondent No.1 herein has
subscribed his signature as a consenting witness. With all
probabilities, after the execution of the sale deed dated 05.08.2014,
the Complainant and the Respondent No.1 herein must have colluded
with each other and created/fabricated the alleged agreement of sale
dated 23.08.2012 as if it was executed by these Respondents and
filed the above complaint for wrongful gain, absolutely there is no
truth in it.
5. It is submitted that, interestingly these Respondents have not
permitted the Respondent No.1 to put up construction on the property
under the sale deed dated 17.05.2012. If at all if the Complainant has
paid any amount to the Respondent No.1 behind the back of these
Respondents then he is at liberty to claim the same with the
Respondent No.1 himself but not by making these Respondents as
parties to the Complaint and dodging them for an unnecessary
litigation. In view of the same the above complaint requires to be
dismissed with exemplary costs to meet the ends of justice.
6. It is submitted that, without admitting the contention of the
Complainant, for the sake of objections, it is to be noted here that the
Complainant must not have taken a minimum care to verify the
marketable title and obtained the consent of these Respondents
before he entering into the alleged agreement of sale dated
23.08.2012 and so also at the time of making the payment. for which
he has to blame himself and not these Respondents."
22. Perusal of the aforesaid contents of the complaint and
objection statement as noted above, indicate that dispute
is purely pertaining to and arising out of an alleged
agreement of sale dated 23.08.2012, purportedly entered
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into between the respondent No.3 and petitioners along
with one M/s Atheena Infra Build Pvt. Ltd. The
respondent No.3 apparently seeking enforcement of the
contractual rights arising out of said agreement.
23. The averments in the complaint and the reliefs sought
therein do not fall within the provisions of Section 8 of the
Act. Despite, respondents/petitioners raising the question
of maintainability of the very complaint filed in the light of
the reliefs sought for which would otherwise require to be
adjudicated by the competent Court of Civil Jurisdiction,
respondent No.2-Commission proceeded with the matter
and had even issued warrant against one of the
petitioners herein, who were respondents before the
Commission.
24. Extracted version of the complaint and the objections
noted above, makes it obvious that such a dispute cannot
be entertained by the respondent No.2-Commission under
garb of exercising its power under Section 8 of the Act,
2002. It is beyond the comprehension of this Court as to
a Commission which is consisting of Members with
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prescribed qualifications, have not ascertained and
discerned the scope and ambit of the dispute brought
before them qua their power and jurisdiction.
25. As noted above, this exercise of jurisdiction in the
absence of any statutory provisions providing thereof has
given rise to several unwarranted litigations pending
before this Court, as that of the instant case for years.
All that was required for the respondent No.2-Commission
was at the very first instance to ascertain from the
complaint averments, if the matter brought before them,
fell within their power and jurisdiction or not. This
elementary examination at the admission level will weed
out unnecessary litigations and avoidable hardship to the
parties.
26. On the question of exercise of power by the Commission
in issuing the warrant of arrest, perusal of the order sheet
dated 05.01.2017, indicate that on behalf of respondent
Nos.1 and 2, counsel was present and had undertaken to
keep the respondent Nos.1 and 3 to be present before the
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Commission. The Commission has however issued a
warrant to the respondent No.2 through the concerned
Assistant Commissioner of Police. Learned counsel for
the petitioners submitted that though it was brought to
the notice of the Commission that he has been authorized
to represent respondent No.2, who is unable to appear
personally due to age and ailment, the Commission
proceeded to issue warrant without assigning any
reasons.
27. Section 10 of the Act, 2002 empowers the respondent
No.2-Commission with powers of a civil Court, in trying a
suit in respect of the matters enumerated as noted
above, which does not provide for issuance of warrant.
However, Rules 12 and 13 of the Rules, 2012, read as
under:
12. Legal Processes :- All summons and warrants that
the required to be issued in pursuance of the exercise of the
powers of a Civil Court by the Commission shall be written in
the prescribed form and shall bear the seal of the
Commission. The provision of the Code of Civil Procedure
applicable for the service of the legal processes shall be
followed by the Commission.
13. Form of summons and warrants :- The summons
and warrants shall be Form IV and V respectively.
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28. Form V providing for issuance of warrants reads as
under:
''FORM- V
KARNATAKA STATE COMMISSION FOR THE SCHEDULED CASTES AND
SCHEDULED TRIBES
#14/3, 2nd Floor, C.F.C. Building, Nrupatunga Road, Bangalore-560
001.
#14/3, 2nd Floor, C.F.C.Building Nrupatunga Road. Bangalore-560 001
To
Whereas____r/o___ has been duly served with a summons but
has failed to attend (absconds keeps out of the way for the purpose of
avoiding service of a summons), the Karnataka State Commission for
Scheduled Castes and Scheduled Tribes exercising powers of a Civil
Court, hereby order you to arrest and bring the said_______before the
State Commission at Bangalore.
You are further order to return this warrant on or before the
________________day of ______20________ with an endorsement
certifying the day and the manner in which it has been executed, or
the reason why it has not been executed.
Given under my hands and the seal of the State Commission
exercising powers of Civil Court, this __________of
_____________20_______
SEAL Signature''
29. Perusal of the aforesaid Rules indicate that exercise of
power even for the purpose of issuance of warrant shall
be pursuant to the powers that requires to be exercised
by a Civil Court. The contents of the Form-V indicate that
a specific reason should be assigned before issuing a
warrant to the effect that summons were duly served but
the party concerned has failed to attend (absconds keeps
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out of the way for the purpose of avoiding service of
summons).
30. Under the provisions of Code of Civil Procedure, issuance
of warrant of arrest is contemplated under Sections 30,
32, and 51, which provisions reads as under:
30. Power to order discovery and the like.—Subject to such
conditions and limitations as may be prescribed, the Court
may, at any time, either of its own motion or on the
application of any party,—
(a) make such orders as may be necessary or
reasonable in all matters relating to the delivery
and answering of interrogatories, the admission of
documents and facts, and the discovery, inspection,
production, impounding and return of documents or
other material objects producible as evidence;
(b) issue summonses to persons whose attendance is
required either to give evidence or to produce
documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit.
32. Penalty for default.—The Court may compel the attendance of
any person to whom a summons has been issued under
section 30 and for that purpose may—
(a) issue a warrant for his arrest;
(b) attach and sell his property;
c) impose a fine upon him 1[not exceeding five
thousand rupees];
(d) order him to furnish security for his appearance
and in default commit him to the civil prison
51. Powers of Court to enforce execution.—Subject to such
conditions and limitations as may be prescribed, the Court
may, on the application of the decree-holder, order execution
of the decree—
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by the sale without attachment
of any property;
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(c) by arrest and detention in prison 3[for such period not
exceeding the period specified in section 58,where arrest and
detention is permissible under that section];
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted
may require:
4[Provided that, where the decree is for the payment of
money, execution by detention in prison shall not be ordered
unless, after giving the judgment-debtor an opportunity of
showing cause why he should not be committed to prison, the
Court, for reasons recorded in writing, is satisfied—]
(a) that the judgment-debtor, with the object or effect of
obstructing or delaying the execution of the decree,—
(i) is likely to abscond or leave the local limits of the
jurisdiction of the Court, or
(ii) has, after the institution of the suit in which the decree
was passed, dishonestly transferred, concealed, or removed
any part of his property, or committed any other act of bad
faith in relation to his property, or
(b) that the judgment-debtor has, or has had since the date
of the decree, the means to pay the amount of the decree or
some substantial part thereof and refuses or neglects or has
refused or neglected to pay the same, or
(c) that the decree is for a sum for which the judgment-debtor
was bound in a fiduciary capacity to account.
31. Thus, it is only under the circumstances contemplated
under the aforesaid provisions, a warrant could be issued
and not otherwise. Therefore, casual exercise of powers
by the respondent No.2-Commission in issuing warrants
even at the initial stage of the proceedings without
assigning the reasons would amount to an abuse of
process of law.
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32. A warrant cannot be issued for mere asking or at the
whims of the Authority, the Authority shall be
circumscribed by the well established principles before
proceeding to issue a warrant, which has severe
consequences affecting the liberty of a person. Unless,
such power is specifically provided and cognizable case is
made out, the authority has not power under law to issue
a warrant.
33. Though as noted above, the promulgation of the Act and
constitution of the Commission, as provided thereunder is
for the lofty and laudable objects of upholding, preserving
and protecting the constitutional and statutory rights of
the members belonging to Scheduled Castes and
Scheduled Tribes community, the same cannot be
expanded and be exercised in a manner usurping the
jurisdiction of competent Civil Courts and the Tribunals. It
is in this regard and concern, this Court had requested
the Chairman of the Commission to be present before this
Court, as there was no representation by the counsel.
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34. In response, today learned counsel representing
respondent No.2- Commission and the Secretary of the
respondent No.2-Commission are present. On being
appraised about the litigations which otherwise fall
outside the power and jurisdiction of the Commission
being entertained by the Commission, it is submitted
that, henceforth, the Commission would ensure that it
would not entertain complaints and the cases which
would fall outside the purview of the power and
jurisdiction of the respondent No.2-Commission.
35. In the light of the assurance given above, this Court
hopes that in future, while exercising its jurisdiction in
accordance with law, care would also be taken to consider
the objections on maintainability of the complaints,
before proceeding further in the matter and issuing or
passing the harsh orders, as that of issuing warrants in
the instant case.
36. Since the complaint filed by respondent No.4 before
respondent No.2-Commission, prima facie would not fall
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within the four corners of the power conferred under
Sections 8 and 10 of the Act, 2002 and reserving liberty
to the respondent No.3 to redress his grievance before
the competent Court of law, this Court pass the following:
ORDER
(i) The writ petition is allowed .
(ii) Proceedings in case No.801/2016-17 as per
Annexure-D are quashed.
(iii) Registry to forward the copy of this judgment to
Chief Secretary, State of Karnataka, who shall
ensure that the concerned department and the
members of the respondent No.2-Commission are
sensitized with regard to the pronouncements of the
Hon'ble Apex Court and by this Court regarding the
powers and jurisdiction of the Commission.
In view of disposal of writ petition, pending IAs, if any,
stands disposed of.
SD/-
(M.G.S. KAMAL)
JUDGE
SPV