Withdrawal of Appeal against DK Shivakumar and BS Yeddyurappa: Unanswered questions

Murali Krishnan March 13 2019

The withdrawal of the appeal in the alleged land grabbing case against Karnataka Minister and Congress leader DK Shivakumar and BJP Leader BS Yeddyurappa in Supreme Court has raised many an eyebrow.

The matter was withdrawn after a mentioning was made out of the blue on February 21. The Court had taken the matter on board and proceeded to allow the request made by the petitioner to withdraw the case.

The order passed on February 21 reads:

“Taken on board. Learned counsel for the petitioners seeks leave to withdraw these Special Leave Petitions. Permission granted. The Special Leave Petitions are dismissed as withdrawn. Pending applications, if any, stand disposed of.”

NGO Samaj Parivartan Samudaya has now filed an application seeking recall of the Supreme Court order of February 21 by which the Court had allowed the matter to be withdrawn.

The hearing in that application witnessed some heated arguments on March 11 with advocate Prashant Bhushan making some scathing submissions.

The locus of the NGO in the case was assailed by Senior advocate Kapil Sibal since the NGO is not a party to the case and had only filed an intervention application earlier (the same is yet to be allowed). The matter will now be heard on the question of locus.

But what makes the withdrawal of this case curious?

The case which is an alleged land grabbing matter involves two big political heavyweights as respondents – Congress leader and Karnataka Minister DK Shivakumar and BJP leader and former Karnataka Chief Minister BS Yeddyurappa.

What is the case?

The land in question, around 4.20 acres, was notified land which had been acquired by the Bangalore Development Authority (BDA). The Karnataka Land (Restriction on Transfer) Act, 1991 prohibits the transfer of land acquired by the government.

Despite that, DK Shivakumar had acquired the land from one BK Srinivasan. Shivakumar was the Urban Development Minister during that period.

He had got the kathas, pahanies and mutation carried out in December 2003, while he was serving as the Urban Development Minister. It has been alleged that no process of inviting objections or mandatory waiting period of 30 days was followed in getting the entries mutated. An investigation by the police revealed that at time of mutation, the entries were in the name of BDA. Even before the de-notification, the entries were mutated in the name of the accused without notice to the BDA.

Shivakumar had then entered into a Joint Development Agreement with Prudential Housing and Infrastructure Development Ltd. and sought a change of land use from industrial to residential.

He is then alleged to have written three letters in his own name seeking de-notification of land while concealing that he is the owner of the land. He is alleged to have cited previous owner, Srinivasan – who had by then passed away – as the owner of the land.

The land was eventually de-notified by the Yeddyurappa government.

The trial was underway against Shivakumar under the Prevention of Corruption Act, when the High Court intervened and quashed the case, holding that no criminal case is made out.

Why the withdrawal is curious?

No appeal by State, Lok Ayukta

What was interesting was that the Karnataka government, which is expected to be prosecuting the accused, did not appeal against the judgment of Karnataka High Court.

The Lok Ayukta Police who was prosecuting the case also did not appeal to the Supreme Court.

It was left to private parties to pursue the matter in Supreme Court and Kabbale Gowda, one of the original complainants, filed an appeal to the Supreme Court.

This was also echoed by Prashant Bhushan in his arguments on March 11 when he said,

“The case was registered by Lok Ayukta police, but the Lok Ayukta did not appeal to the Supreme Court against quashing of his own chargesheet. The State also did not appeal to the Supreme Court and it was left to the private complainants in the matter to file appeal here.

Adjourned in Supreme Court ten times

As per the orders available on the Supreme Court website, the matter was adjourned ten times between July 2016 and January 2018.

Eventually, on January 9, 2018, formal notice was issued in the case. In the order passed on that day, the Court recorded that the matter was being taken up for consideration from time to time but no formal notice had gone to the respondents. The Court, therefore, proceeded to issue notice to the respondents. The order reads:

“We find that the matter is being taken up for consideration from time to time. No formal notice has been issued in these matters so far. Issue notice.”

It also granted four weeks’ time to the respondent to file their responses and ordered that the matter be listed after six weeks.

However, the matter came up for hearing next only on September 5, 2018, when it was once again adjourned after a letter was circulated by one of the respondents.

Curious mentioning to withdrawing

On February 21, the matter was mentioned by AoR for the petitioner, Anantha Narayana MG. This is stated in the order passed by the Court on that day.

The matter was taken on board pursuant to the mentioning and the petitioner sought permission to withdraw the matter. The Court allowed the same.

Attempts to reach Kabbale Gowda to seek a response did not prove fruitful.

 

Present Karnataka Lok Ayukta had appeared for respondents in the case

Another interesting aspect of the case was that the current Lok Ayukta P Vishwanatha Shetty had represented the respondents in the Supreme Court. This was before his appointment as Lok Ayukta on January 28, 2017.

The order passed on August 22, 2016 reveals the same.

This was also raised by Prashant Bhushan during the hearing on March 11 leading to strong objections from the respondents.

Not the first withdrawal

Interestingly, Kabbale Gowda was not the only appellant who had challenged the Karnataka High Court judgment. Another of the complainants, TJ Abraham had also approached the Supreme Court against the High Court verdict.

However, Abraham also withdrew his appeal, much earlier. The same is recorded in the order passed by Supreme Court on July 14, 2017. That order reads:

“Learned counsel appearing for the petitioner, seeks leave of this Court to withdraw the special leave petition. Permission granted. The special leave petition is accordingly dismissed as withdrawn.”

Thus, both appellants withdrew a case which involves two political heavyweights from two of the biggest political parties in the country.

When a private person challenges a judgment against a State and the Supreme Court issues notice, should there be a burden on the party to explain why he/ she is choosing to withdraw the appeal?

Why did the State choose not to challenge the High Court verdict? Why did the private parties who filed the appeals withdraw from the case? Why was a mentioning made on February 21 out of the blue and the request made to withdraw in a jiffy by petitioner Kabbale Gowda?

Curious questions indeed.

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