IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV W.P.NOs.43848-43849/2012(SC/ST) BETWEEN:
1.B R RAMEGOWDA S/O RANGEGOWDA SINCE DEAD BY LRS a) RANGAMMA W/O RANGEGOWDA AGED ABOUT 72 YEARS b) G R VIJAYALAKSHMI, D/O RANGEGOWDA, AGED ABOUT 50 YEARS c) G R MANJUNATH, S/O RANGEGOWDA, AGED ABOUT 48 YEARS d) G R RANGEGOWDA, S/O RANGEGOWDA. AGED ABOUT 42 YEARS e) ASHWATHLAKSHMI, D/O RANGEGOWDA, AGED ABOUT 44 YEARS f) G R SREENIVAS, S/O RANGEGOWDA, AGED ABOUT 42 YEARS g) SHOBHA RANI W/O LINGARAJU AGED ABOUT 40 YEARS 2.LAKKANNAGOWDA, S/O THOPEGOWDA, SINCE DEAD BY LR BASAVANNA GOWDA, S/O LAKKANNAGOWDA, AGED ABOUT 58 YEARS, ALL ARE RESIDENTS OF GUNGARUMALE VILLAGE – 572201, TIPTUR TALUK, TUMKUR DISTRICT. ... PETITIONERS (BY SRI. H P LEELADHAR, ADVOCATE) AND:
1.DEPUTY COMMISSIONER, TUMKUR DISTRICT, TUMKUR-572101.
2.ASSISTANT COMISSIONER, TIPTUR SUB-DIVISION, TIPTUR, TUMKUR DISTRICT.
3.PREMA KUMARI, D/O SANNAKEMPAIAH, R/O GUNGARAMALE VILLAGE, TIPTUR TALUK-572201, TUMKUR DISTRICT. … RESPONDENTS (BY SMT. SAVITHRAMMA, HCGP FOR R1 & 2, SRI. C.R.GOPALASWAMY, ADV. FOR R3) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE SECOND RESPONDENT DATED 30.12.2002 VIDE ANNEXURE-A ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING;
ORDER Petitioners have assailed the order of Deputy Commissioner at Annexure-B and also the order of Assistant Commissioner, whereby the Assistant Commissioner had allowed the application filed on behalf of the grantee and having recorded a finding that there was a violation of Section 4(1) of the Karnataka Schedule Caste and Schedule Tribe (Prohibition of Transfer of Certain Lands) (‘PTCL Act’ for short), has declared the sale transaction as being illegal and ordered for restoration of the said property to the grantees. The appeal filed before the Deputy Commissioner also came to be dismissed.
2. The facts that have been made out by the petitioners is that the land in question which is the subject matter of the present proceedings is stated to have been granted to one Kempaiah, son of Seeraiah in the year 1949. It is stated that the said grantee had sold an extent of 2 acres to petitioner No.1 through sale deed dated 13/01/1965 and similarly, another extent of 3 acres in the same survey number came to be sold in favour of petitioner No.2 by sale deed dated 31/05/1966.
3. It is stated that respondent No.3 claiming to be the daughter of grantee has instituted proceedings before the Assistant Commissioner under the PTCL Act for resumption and restoration of the lands in question in Case No.PTCL:SR(T)06:2000-01. The Assistant Commissioner after recording necessary findings has declared that there was a violation of Section 4(1) of the PTCL Act and declared that the sale transactions were illegal and directed resumption and restoration of the land to the original grantees.
4. Counsel for respondent No.3 contends that the authorities have noticed that the grant relating to the year 1949 was subject to the rules prevailing during the relevant time and as per the conditions stipulated in a notification imposing restrictions which were in operation between 13/12/1938 and 04/08/1953 that there was a condition of permanent non-alienation. Hence, it is contended that there has been a clear violation of the prevailing rule and therefore, the question of approaching the authority within a reasonable period of time or otherwise is irrelevant.
5. Counsel for the petitioners further state that if the submission of counsel for respondent No.3 is taken note of that there was a condition of permanent non- alienation, the right to move the authorities would have accrued immediately after the sale transaction and action should have been initiated within the time that would be available for asserting rights in law. He further points out that the Apex Court has clearly held in the case of Vivek M.Hinduja and others Vs. M.Ashwatha and others in Civil Appeal No.2166/2009 (Dated 06.12.2017) and reiterated in the case of Nekkanti Rama Lakshmi Vs. State of Karnataka and another in Civil Appeal No.1390/2009 (Dated 26.10.2017) that power under the statute ought to be exercised within a reasonable period of time and if not, the same was bad in law and that the Assistant Commissioner ought not to have entertained the proceedings taking note of the delay in approaching the authority. Hence, petitioners’ state that in light of the law laid down by the Apex Court, the question of Assistant Commissioner entertaining the application of the petitioners after a lapse of 35 years after the sale transaction and 22 years after the Act has come into force on 01/01/1979 is illegal.
6. The question of delay in approaching the authorities and invoking the statutory remedy is a settled position and observations made in W.P.No.12848/2018 extracted below would be apt:
“5. However, without recording findings as regards the contention of the petitioner relying on the law laid down in ILR 2004 KAR 3298 in the case of Mariyappa Vs. Dr.N.Thimmarayappa and others and in view of the judgment of Apex Court in the case of Vivek M.Hinduja and others Vs. M.Ashwatha and others referred to (supra) and also judgment in Nekkanti Rama Lakshmi Vs. State of Karnataka and another referred to (supra), where the Apex Court at para No.8 has held, after referring to the Judgment in Chhedi lal Yadav and others Vs. Hari Kishore Yadav (D) Thr. Lrs & Ors, 2017 (6) Scale 459, that provisions of the statute must be invoked within a reasonable time. The Apex Court in the facts of the said case wherein application for restoration was made after 24 years, had held that the said period of delay in initiating proceedings was unreasonable and dismissed the application for restoration on that ground. The same position of law was reiterated in the case of Vivek M. Hinduja and others Vs. M. Ashwatha and others in Civil Appeal No. 2166/2009 (Dated 06.12.2017), wherein at paragraph No.10, the Court has reiterated that the party who were a beneficiary had to approach the competent authority within a reasonable time, beyond which relief would not be granted.”
7. As regards the question of delay, counsel for respondent No.3 nor the Additional Government Advocate are not in a position to controvert the contentions raised by the petitioner nor are in a position to explain as to why the law laid down by the Apex Court as stated supra is not applicable to the present case.
8. In light of the contentions raised and noticing the law laid down by the Apex Court, the order of the Assistant Commissioner dated 30/12/2002 at Annexure-A as well as the order of Deputy Commissioner at Annexure-B dated 24/09/2010 are set aside.
9. Petitions are accordingly allowed.
Sd/- JUDGE Msu