IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION N0.1136/2015 (SC/ST) BETWEEN:
1. SMT. ANNAPURANAMMA W/O LATE T.S.SHEKARAPPA, AGED ABOUT 58 YEARS, 2. SRI HARISH S/O LATE T.S.SHEKARAPPA, AGED ABOUT 38 YEARS, 3. SRI MANJUNATH S.
S/O LATE T.S.SHEKARAPPA, AGED ABOUT 38 YEARS, PETITIONERS Nos.1 TO 3 ARE RESIDENTS OF THAVERAKERE VILLAGE, CHENNAGIRI TALUK, DAVANAGERE DISTRICT.
... PETITIONERS (BY SRI N.M.HANDRAL, ADVOCATE) AND:
1. THE STATE OF KARNATAKA DEPARTMENT OF REVENUE, M.S. BUILDING, BANGALORE – 560 001. REP. BY ITS SECRETARY.
2. THE DEPUTY COMMISSIONER DAVANAGERE DISTRICT, DAVANAGERE – 577 002.
3. THE ASSISTANT COMMISSIONER DAVANGERE SUB-DIVISION, DAVANGERE – 577 002.
4. SMT. PUTTAMMA W/O YELLAPPA, AGED ABOUT 63 YEARS, R/AT THAVAREKERE VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT – 577 001.
5. SMT. THOLACHAMMA W/O RUDRAPPA, AGED ABOUT 61 YEARS, R/AT HANUMALAPURA VILLAGE, CHANNAGIRI TALUK, DAVANGERE DISTRICT – 577 001.
6. SMT. LAKSHMAMMA W/O PARAMESHWARAPPA, AGED ABOUT 60 YEARS, R/AT GADAMANAHALLI VILLAGE, CHICKMANGALORE DISTRICT – 577 011.
7. SRI ABDUL SUBHAN S/O LATE ABDUL AJEEZ, AGED ABOUT 56 YEARS, 8. SRI ABDUL MAZEED S/O LATE ABDUL AJEEZ, AGED ABOUT 54 YEARS, 9. SRI ABDUL MUNAF S/O. LATE ABDUL AJEEZ, AGED ABOUT 52 YEARS, RESPONDENT Nos.7 TO 9 ARE R/AT THAVAREKERE VILLAGE, CHANNAGIRI TALUK, DAVANGERE DISTRICT – 577 001.
10. SRI M. PACHHIYAPPA GOWNDER S/O MANIKYA GOWNDER, MAJOR, R/AT THAVAREKERE VILLAGE, CHANNAGIRI TALUK, DAVANGERE DISTRICT – 577 001.
… RESPONDENTS (BY SMT. SAVITHRAMMA, HCGP FOR R1, R2, R3; SRI PRAKASH M.PATIL, ADV., FOR R4-R6; R7, R8, R9 ARE SERVED R10 IS DELETED VIDE ORDER DATED 23.09.2019) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE R2 DATED 28.11.2014 VIDE ANNEXURE-K.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed by the petitioners challenging the order passed by the Deputy Commissioner vide order dated 28.11.2014, Annexure-K, for resuming and restoring the land in favour of respondent Nos.4 to 6.
2. Heard the arguments of learned counsel for the petitioners, learned HCGP for respondent Nos.1 to 3 and learned counsel for respondent Nos.4 and 6. Though, respondent Nos.7, 8 and 9 are served, have remained absent.
3. The case of the petitioners is that the land in Sy.No.30/1 measuring 5 acres situated at Kolkere Village, Channagiri Taluk, Davanagere District, was granted to one Rangappa on 30.08.1955 as per the darkhast rules prevailing at that time. The said Rangappa sold all 4 acres of land to one Abdul Ajeez on 22.11.1966 and in turn, the said Abdul Ajeez sold 4 acres of land to one Pachchiyappa Goundar on 13.07.1972. Later, the husband of 1st petitioner namely T.S.Shekarappa had purchased 1 acre of land from Abdul Ajeez on 03.09.1981 and 4 acres of land from Pachchiyappa Goundar on the same day. Totally 5 acres of land was purchased by him. Subsequently, after the commencement of the Act, the LRs of original grantee filed an application under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (hereinafter referred to as ‘PTCL Act’ for short) on 25.02.2010 for resumption and restoration of the land. The Assistant Commissioner-respondent No.3 has rejected the application vide order dated 19.08.2013, Annexure-H. Assailing the same, the LRs of original grantee filed an appeal before the Deputy Commissioner, Davanagere District, under Section 5-A of the PTCL Act. The Deputy Commissioner-respondent No.2 after considering the evidence on record has allowed the appeal and restored the land in question to the LRs of original grantee on the ground that the sale deeds are void, which hit by Section 4 of the PTCL Act vide its order dated 28.11.2014. Assailing the same, the LRs of purchaser are before this Court by way of writ petition.
4. Learned counsel for the petitioners has challenged the order of the Deputy Commissioner mainly on the ground of delay and latches and he has contended that the land in question was granted in the year 1955. Admittedly, the LRs of original grantee have not filed any documents like grant order or saguvali chit before the Assistant Commissioner and also there was a delay in filing the application. Therefore, the Assistant Commissioner has rightly dismissed the restoration application, but the Deputy Commissioner has committed error in allowing the appeal and restored the land even though there was a delay of 44 years in filing the restoration application after first sale deed effected in the year 1966 and 38 years delay in filing the application after the second sale deed effected in the year 1972 and even otherwise, there is more than 31 years delay in filing the restoration application after commencement of the PTCL Act in the year 1979 and there is 29 years delay after the third sale deed effected in the year 1981. The learned counsel for the petitioner in support of his contention has relied upon the judgments of the Hon’ble Apex Court in the case of Nekkanti Rama Lakshmi Vs., State of Karnataka and Another reported in 2018(1) Kar.L.r 5(SC) and Vivek M. Hinduja and others Vs. M. Ashwatha and others reported in 2018 (1) Kar. L.R 176 (SC). Hence, he prayed for setting aside the impugned order and for allowing the writ petition.
5. per contra, learned counsel for respondent Nos.4 to 6 has contended that the Deputy Commissioner after considering the saguvali chit produced by him has rightly hold that the land in question was a granted land to the persons belonging to SC/ST Community who comes under the definition of Section 3(1)(b) of the PTCL Act and the land was granted to the grantee at free of cost. There is a bar for 15 years for alienating the property, but the sale deed was effected within 12 years from the date of grant. Thereby, there is clear violation of grant rules. Such being the case, in view of Section 4 of the PTCL Act, the sale deeds are void. Therefore, the Deputy Commissioner has rightly allowed the appeal and restored the land. Hence, prayed for dismissal of the writ petition.
6. Learned HCGP for respondent Nos.1 to 3 has also supported the order passed by the Deputy Commissioner and prayed for dismissal of the writ petition.
7. Upon hearing the arguments of learned counsel for the parties and on perusal of the records, the following points arises for consideration before this Court:
“Whether the order under challenge passed by the Deputy Commissioner, Annexure-K, dated 28.11.2014 for restoring the land of the grantee are sustainable in view of delay and latches?”
8. On perusal of the record, admittedly, in the order passed by the Deputy Commissioner, it is not in dispute that the land in question was granted to the persons who belong to Adi Karnataka on 30.08.1955 and the condition of non-alienation as per the Rules, there is a bar of 15 years from alienating the granted land. It is also an admitted fact that the said grantee sold 5 acres of land to Abdul Ajeez who is the father of respondent Nos.7 to 9 on 22.11.1966 and the said Abdul Ajeez sold 4 acres of land to Pachchiyappa Goundar on 13.7.1972 and subsequently, the said Pachchiyappa Goundar sold 4 acres of land to T.S.Shekarappa who is the husband of 1st petitioner on 03.09.1981. The said T.S.Shekarappa also purchased remaining 1 acre of land from Abdul Ajeez on the same date. Since then, they are in possession and enjoyment of the said land. Admittedly, the L.Rs of the grantee filed the restoration application before the Assistant Commissioner on 25.02.2010 and the Assistant Commissioner though rejected the application on the ground that no documents are produced and also on the ground that there is a delay, but in the appeal, the Deputy Commissioner has held that the land was a granted land under Section 3(1)(b) of the PTCL Act to the people who belongs to SC/ST community at free of cost. Therefore, non-alienation clause is applicable and there shall not be alienation for 15 years and there is violation of terms of rule by executing the sale deed in favour of Abdul Ajeez in the year 1966.
9. On perusal of the record, admittedly, the 1st sale deed in the year 1966 was effected in contravention of the Grant Rules and there is violation and the land was sold within 15 years of grant. Subsequently, the said sale deeds were effected based upon the first sale deed. Though, there is clear violation of Grant Rules, in view of sale deed effected in the name of Abdul Ajeez in the year 1966, after the commencement of the PTCL Act w.e.f., 01.01.1979 as per Section 4(1) of the PTCL Act, if any sale is effected in contravention of the Grant Rules before or after commencement of the Act is void and as per Section 4(2) of the PTCL Act, if any sale after commencement of the PTCL Act without permission is void. Admittedly, the sale deed was effected prior to the commencement of the PTCL Act. The Hon’ble Apex Court in the case of Nekkanti Rama Lakshmi Vs., State of Karnataka and Another reported in 2018(1) Kar.L.r 5(SC), wherein at paragraph No.8 of the judgment it is held as under:
“8. However, the question that arises is with regard to terms of Section 5 of the Act which enables any interested person to make an application for having the transfer annulled as void under Section 4 of the Act. This Section does not prescribe any period within which such an application can be made. Neither does it prescribe the period within which suo motu action may be taken. This Court in the case of Chhedi Lal Yadav & Ors. vs. Hari Kishore Yadav (D) Thr. Lrs. & Ors., 2017(6) SCALE 459 and also in the case of Ningappa vs. Dy. Commissioner & Ors. (C.A. No.3131 of 2007, decided on 14.07.2011) reiterated a settled position in law that whether Statute provided for a period of limitation, provisions of the Statute must be invoked within a reasonable time. It is held that action whether on an application of the parties, or suo motu, must be taken within a reasonable time. That action arose under the provisions of a similar Act which provided for restoration of certain lands to farmers which were sold for arrears of rent or from which they were ejected for arrears of land from 1st January, 1939 to 31st December, 1950. This relief was granted to the farmers due to flood in the Kosi River which make agricultural operations impossible. An application for restoration was made after 24 years and was allowed. It is in that background that this Court upheld that it was unreasonable to do so. We have no hesitation in upholding that the present application for restoration of land made by respondent-Rajappa was made after an unreasonably long period and was liable to be dismissed on that ground. Accordingly, the judgments of the Karnataka High Court, namely, R. Rudrappa vs. Deputy Commissioner, 2000 (1) Karnataka Law Journal, 523, Maddurappa vs. State of Karnataka, 2006 (4) Karnataka Law Journal, 303 and G. Maregouda vs. The Deputy Commissioner, Chitradurga District, Chitradurga and Ors, 2000(2) Kr. L.J.Sh. N.4B holding that there is no limitation provided by Section 5 of the Act and, therefore, an application can be made at any time, are overruled. Order accordingly.”
10. The Hon’ble Apex Court has held that though there is no period of limitation prescribed under the PTCL Act, but the grantee is required to file an application for restoration within the reasonable time and if any inordinate delay for more than 20 to 25 years the order of restoration is not sustainable. Based upon the judgment of the Hon’ble Apex Court, the Division Bench of this Court in the case of Ningamma and the Tibetian Children’s Village and Others in W.A.No.4092/2017 dated 09.04.2019 has also held that due to delay and latches the order of restoration is not sustainable. Admittedly, in the case on hand, the first sale deed was effected during the year 1966. The restoration application was filed in the year 2010. There is 44 years delay in filing the restoration application from the date of first sale deed and there is 38 years delay in filing the application from the date of second sale deed, which was effected in the year 1972 and even there is delay of 31 years in filing the restoration application from the date of commencement of the PTCL Act which came into force in the year 1979 and there is 29 years delay in respect of third sale deed effected in the name of husband of 1st petitioner which was effected in the year 1981. Absolutely, there is no explanation forthcoming from the side of LRs of the grantee for preventing them from filing the application within the reasonable time. In view of the judgment and principles laid down by the Hon’ble Apex Court stated supra and judgment of this Court in Ningamma’s case, if any inordinate delay and latches in filing the restoration application by the grantees, the order of restoration is not sustainable. Therefore, in view of 49 years of delay and latches in filing the restoration application for challenging the very sale deed held in the year 1966, the order of restoration passed by the Deputy Commissioner is not sustainable in view of delay and latches on the part of L.Rs of grantee. Therefore, the order under challenge passed by the Deputy Commissioner dated 28.11.2004 vide Annexure-K deserves to be set aside. Accordingly, I pass the following ORDER Writ petition is allowed.
The order passed by the Deputy Commissioner dated 28.11.2004 vide Annexure-K is hereby set aside.
SD/- JUDGE PB