IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN WRIT PETITION No.41396/2014 (SC/ST) BETWEEN:
B.M.SUBHAS CHANDRA REDDY, S/O.BHEEMAPPA REDDY, AGED ABOUT 52 YEARS, AGRICULTURIST, R/O. BIJOGATTE VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT-577 001.
…PETITIONER (BY SRI MOHAN REDDY H. SAWKAR, ADVOCATE) AND:
1. DEPUTY COMMISSIONER DAVANAGERE DISTRICT, DAVANAGERE-577 001.
2. THE ASSISTANT COMMISSIONER, DAVANAGERE SUB-DIVISION, DAVANAGERE-577 001.
3. KOTRESHI S/O GANESHAPPA, AGED MAJOR, AGRICULTURIST, R/O.BIJOGATTE VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT-577 001. …RESPONDENTS (BY SMT.SAVITHRAMMA, HIGH COURT GOVERNMENT PLEADER FOR RESPONDENT NOs.1 AND 2, SRI.PRABHUSWAMY.N., ADVOCATE FOR SRI V.B.SIDDRAMAIAH, ADVOCATE FOR RESPONDENT No.3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE RESPONDENT No.2 DATED 14/03/2011 VIDE ANNEXURE-A AND ALSO THE ORDER PASSED BY DEPUTY COMMISSIONER, DAVANAGERE DISTRICT DATED 21/07/2014 VIDE ANNEXURE-B AND ETC.
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 petitioner challenging the order passed by the first respondent - Deputy Commissioner vide Annexure ‘B’ to the petition, dated 21.07.2014 confirming the order of restoration passed by the second respondent – Assistant Commissioner vide Annexure ‘A’ to the petition, dated 14.03.2011.
2. I have heard the arguments of the learned counsel for the petitioner, learned High Court Government Pleader for respondent Nos.1 and 2 and learned counsel for respondent No.3.
3. The status of the parties before the Assistant Commissioner is retained for the sake of convenience.
4. The case of the petitioner, who is the legal heir of the grantee, before the Assistant Commissioner is that the land measuring 03 Acres 15 guntas in Sy. No.27/6 situate at Bijogatte village, Honnali Taluk, has been granted to one Sri A.K. Sannappa on 05.07.1972. Subsequently, the wife and son of the original grantee have sold the said land to the petitioner herein under the sale deed dated 21.04.1995. Subsequently, the legal heir of the original grantee, who is respondent No.3 in this petition, filed an application under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, ‘the PTCL Act’) before the Assistant Commissioner for resumption and restoration of the granted land on the ground that the alienation made by the legal heirs of the original grantee in favour of the petitioner herein under sale deed dated 21.04.1995 was hit by the provisions of Section 4(2) of the PTCL Act and after considering the documents and evidence on record, the Assistant Commissioner allowed the application vide Annexure ‘A’ to the petition dated 14.03.2011.
5. Assailing the order passed by the Assistant Commissioner, the purchaser, petitioner herein, filed the appeal before the Deputy Commissioner. The learned Deputy Commissioner after considering the arguments addressed by the parties vide his order dated 21.07.2014, dismissed the appeal of the petitioner herein and confirmed the order passed by the Assistant Commissioner. Hence, the purchaser filed this writ petition before this Court.
6. Learned counsel for the petitioner seriously contended that the land has been granted to Sri A. K. Sannappa along with other persons. They also do not belong to the same community. There is no specific recital available in the order of grant vide Annexure ‘C’ to the petition that the land has been granted to the grantee under the PTCL Act or to the persons belonging to the Scheduled Caste and/or Scheduled Tribe. Absolutely, there is no condition imposed for alienation of the land. That apart, an amount of Rs.66.20 Ps. has been collected towards the upset price and the saguvali chit also shows that the land has been sold by auction by collecting the upset price. Such being the case, the question of imposing the condition of non-alienation for a period of 15 years does not arise. He further contended that the sale deed was executed by the legal heirs of the original grantee in favour of the petitioner herein on 21.04.1995 and even if there is any violation of the conditions of the Land Grant Rules, the legal heirs of the grantee has filed an application for restoration of the land only in the year 2010. There is a delay of more than 15 years 10 months in filing the application. There is inordinate delay and laches on the part of respondent No.3, the legal heir of the grantee, in taking action against restoration of the land and setting aside the sale deed. Therefore, the order under challenge is not sustainable in view of the judgment of the Hon`ble Apex Court reported in the case of NEKKANTI RAMA LAKSHMI vs. STATE OF KARNATAKA AND ANOTHER reported in 2018 (6) Kar. L.J. 792 (SC). Learned counsel relied upon the judgment of the Division Bench of this Court in Writ Appeal No.4092/2017 disposed of on 09.04.2019 (Smt. Ningamma vs. The Tibetian Children’s Village) and prayed for allowing the writ petition.
7. Per contra, learned counsel appearing for respondent No.3, legal heir of the grantee, has supported the order of respondent Nos.1 and 2 and contended that the land has been granted to his grandfather, person belonging to scheduled caste and scheduled tribe thereby, it comes within the ambit of the provisions of the PTCL Act and the very document Annexure ‘C’ to the petition clearly goes to show that there was a condition that the grantee shall not alienate the property for 15 years and the amount of Rs.66.20 Ps. is only a nominal price collected by the Government. Thereby, the land has been granted to the persons belonging to the Scheduled Caste and Scheduled Tribe which falls under Section 3(1)(b) of the PTCL Act and the sale deed has been effected only after commencement of the PTCL Act, which came into force from 01.01.1979 whereas the sale deed was effected in the year 1995. There is clear violation of the provisions of Section 4(2) of the PTCL Act, the permission had not been obtained by the legal heirs of the grantee for the purpose of executing sale deed in favour of the petitioner. Therefore, respondent Nos.1 and 2 rightly allowed the application of respondent No.3 and restored the land in his favour. Moreover, delay in making application for restoration of land is only 15 years and same cannot be considered as inordinate delay on the part of the legal heirs of the grantee in not taking action. Therefore, they sought for dismissal of the petition.
8. Learned High Court Government Pleader has supported the orders of the Assistant Commissioner and Deputy Commissioner, however, argued that the sale was effected in the year 1995, whereas the grant of land was made in favour of Sri A.K. Sannappa in the year 1972 and as per the non-alienation condition of grant, the land could not have been alienated by the grantee within 15 years from the date of grant and the said condition has been violated by the legal heirs of the grantee, in view of the commencement of the PTCL Act from 01.01.1979, the legal heirs of the grantee were required to obtain permission under Section 4(2) of the PTCL Act, which was mandatory and therefore, on this ground, prayed for dismissal of the petition.
9. Upon hearing the arguments of the learned counsel for the parties as well as the High Court Government Pleader and on perusal of the records, it would go to show that it is an admitted that the land measuring 03 Acres 15 guntas in Sy. No.27/6 situate in Bijogatte village, Honnali Taluk, was granted in favour of Sri A.K. Sannappa and the amount that has been collected by the Government is only Rs.66.20 Ps., which cannot be the market value of the property as it was collected by the authorities as only tax a nominal price and even on perusal of the grant certificate vide Annexure ‘D’ to the petition, the amount is only Rs.66.20 Ps. and the said land has been sold in public auction and Annexure ‘C’ to the petition does not reveal that the land has been sold by public auction by collecting the market value. Once the land has been sold by public auction by collecting the market value, the question of imposing non- alienation condition of 15 years vide Annexure ‘C’ to the petition does not arise. Therefore, the contention taken by the learned counsel for the petitioner cannot be accepted. The property has been sold by public auction by collecting the market value from the grantee.
10. On the other hand, from the observations made by respondent Nos.1 and 2, Annexure ‘C’ to the petition clearly goes to show that the land has been granted to the persons belonging to the scheduled caste and scheduled tribe by collecting only nominal price of Rs.66.20Ps. The land granted clearly falls under the definition of ‘granted land’ as per Section 3(1)(b) of the PTCL Act. However, as per Section 4(2) of the PTCL Act after commencement of the Act with effect from 01.01.1979, the permission of the Government is mandatory for selling the granted land. It is not the case of the petitioner that the land has been purchased after obtaining permission from the Government. The land has been sold by the legal heirs of the original grantee in favour of the petitioner herein on 21.04.1995. There is a clear violation of the provisions of Section 4(2) of the PTCL Act, the alienation took place without obtaining the permission of the Government. However, the learned counsel for the petitioner has contended that there is an inordinate delay in filing the restoration application for more than 15 years from the date of sale of the land in question. In this regard, the Hon`ble Apex Court in the case of Nekkanti Rama Lakshmi (referred supra), where the application for restoration was made after 20 to 24 years from the date of coming into force of the PTCL Act, the orders of restoration were set aside by the Hon`ble Apex Court. Relying upon the judgment of the Hon`ble Apex Court, this Court as well as Division Bench of this Court have set aside the orders of restoration passed by Deputy Commissioner and Assistant Commissioner.
11. In this case, admittedly, the application for restoration of the land in question came to be filed in the year 2010 i.e, after 15 years 10 months from the date of execution of the sale deed dated 21.04.1995. In this regard, learned counsel for the petitioner relied upon the judgment of the Division Bench of this Court in Writ Appeal No.4092/2017 dated 09.04.2019, wherein Division Bench of this Court while upholding the order of the learned single Judge has set aside the order of restoration passed by the Deputy Commissioner on the ground that the legal representatives of grantees therein filed application after 12 years from the date of sale of land, which took place in the year 1994. In this case, there is delay of more than 15 years in filing the application for restoration of the land.
12. In view of the judgments of the Hon`ble Apex Court in the case of Nekkanti Rama Lakshmi (referred supra) and in the case of MR.VIVEK M. HINDUJA AND OTHERS vs. Mr. M. ASHWATHA AND OTHERS in Civil Appeal No.2166 of 2009 decided on 06.12.2017 and the judgment of Division Bench of this Court dated 09.04.2019 in Writ Appeal No.4092 of 2017, this Court holds that there is inordinate delay of more than 15 years on the part of respondent No.3, the legal heir of the grantee of the land in question, in filing the application for restoration of the land in question, which was not properly explained by him. Therefore, the impugned orders passed by the Deputy Commissioner as well as Assistant Commissioner are not sustainable in view of the delay and laches. Therefore, I pass the following :
ORDER The Writ Petition is allowed. The order dated 14.03.2011 (Annexure ‘A’ to the petition) passed by the Assistant Commissioner, Davanagere Sub-Division, Davanagere, in case No.PTCL:9/09-10 and the order dated 21.07.2014 (Annexure ‘B’ to the petition) passed by the Deputy Commissioner, Davanagere District, Davanagere, in Case No.PTCL/CR-33/2010-11, are hereby set aside.
Sd/- JUDGE sma