IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION No.46623/2013 (SC/ST) BETWEEN SHRI. BETTAIAH, S/O LATE BETTEGOWDA, AGED ABOUT 62 YEARS, RESIDENT OF No.29 & 30, 7TH ‘A’ CROSS, 23RD ‘A’ MAIN ROAD, J.P. NAGAR, II PHASE, BANGALORE – 78.
(BY SRI V.LAKSHMI NARAYAN, SR. COUNSEL FOR SRI B.RAVINDRANATH, ADV.) AND 1. THE DEPUTY COMMISSIONER, BANGALORE DISTRICT, BANGALORE – 560 001.
2. THE ASSISTANT COMMISSIONER, BANGALORE NORTH SUB-DIVISION, BANGALORE – 560 001.
3. SRI UMAR KHATHRI, S/O YUNUS KHATRI, AGED ABOUT 50 YEARS, R/O. NO.115, MARGOSA ROAD, MALLESHWARAM, BANGALORE – 03.
...PETITIONER 4. SRI KUNAPPA, MAJOR, S/O LATE K. MUNIYAPPA, R/O. SURADENUPURA VILLAGE, HESARAGHATTA HOBLI, BANGALORE NORTH (ADDL.) TALUK, BANGALORE – 560 091.
5. SMT. MANJAMMA, MAJOR, W/O. KUNAPPA R/O. SURADENUPURA VILLAGE, HESARAGHATTA HOBLI, BANGALORE NORTH (ADDL.) TALUK, BANGALORE – 560 091.
6. SMT. MARAKKA, MAJOR, W/O. POOJAPPA, R/O. SURADENUPURA VILLAGE, HESARAGHATTA HOBLI, BANGALORE NORTH (ADDL.) TALUK, BANGALORE.
… RESPONDENTS (BY SMT. SAVITHRAMMA, HCGP FOR R1 AND R2; SRI VIJAY KRISHNA BHAT, ADV., FOR R3;
R4 AND R5 ARE SERVED;
NOTICE TO R6 IS HELD SUFFICIENT VIDE COURT ORDER DATED 07/03/2019.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 06/08/2013 PASSED BY RESPONDENT No.1 VIDE ANNEXURE-F AND DIRECT THE RESPONDENT No.1 TO RESTORE THE PROPERTY IN QUESTION IN FAVOUR OF THE PETITIONER FREE FROM ALL ENCUMBRANCES.
THIS WRIT PETITION COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed by the petitioner challenging the order passed by the Deputy Commissioner, Bengaluru District vide Annexure-F dated 16.08.2013 for having allowed the appeal filed by the purchaser of the granted land.
2. Heard the arguments of learned counsel for the petitioner and respondent No.3 as well as learned HCGP.
3. The case of the petitioner is that the land in survey No.31 (new No.59) measuring 2 acres situated at Sriramanahalli Village, Hesaraghatta Hobli, Bangalore North (Addl.) Taluk has been granted to Munithimma on 20.06.1949. Subsequently, the grand father of respondent Nos.4 to 6 sold the land to Narasimha Reddy on 10.09.1979. Then the said Narasimha Reddy sold the land to S.K.Nataraju and S.K.Ravikumar on 19.08.1983. Thereafter on 06.05.1987, the said S.K.Nataraj and S.K.Ravikumar sold the granted land to Pallagondappa Hollappa. Then on 11.11.1992, the said Pallagondappa Hollappa sold the land to T.S.Bylappa. Then on 1.1.1993, the said land has been converted from agricultural land to non-agricultural purpose in favour of Pallagondappa Hollappa and thereafter on 18.08.2005, B.Shankar and other sold the land in favour of Umar @ Umar Khatri. Later, in 2005, the legal heirs of the grantee i.e., respondent Nos.4 to 6 have filed an application before the Assistant Commissioner 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 resumption and restoration of the land. The learned Assistant Commissioner in his order dated 31.05.2008 restored the land to the legal heirs of the grantee. Then respondent No.3 - Umar Khatri, the purchaser of the land filed an appeal before the Deputy Commissioner and during pendency of the appeal, it is averred that the legal heirs of the grantee filed an application before the Special Deputy Commissioner for seeking permission to alienate the granted land as required under Section 4(2) of the PTCL Act. The Special Deputy Commissioner vide his order dated 09.03.2011 has accorded permission to alienate the granted land to the petitioner and on 03.08.2011. The petitioner purchased the property from the legal heirs of the grantee and in spite of the permission and purchase of the property, the Deputy Commissioner allowed the appeal by setting aside the order of the Assistant Commissioner vide order dated 06.08.2013. The same is challenged by the petitioner who was purchased the property from the legal heirs of the grantee after obtaining the permission from the Deputy Commissioner.
4. Learned counsel for the petitioner strenuously contended that though the earlier land has been sold by the grantee and the legal heirs of the grantee long back and prior to the commencement of the Act and also subsequent to the commencement of the Act, by obtaining the order of restoration from the Assistant Commissioner, the legal heirs of the grantee filed an application before the Special Deputy Commissioner for getting permission to alienate the land as required under Section 4(2) of the PTCL Act. After considering the records, the Special Deputy Commissioner granted permission on 09.03.2011 and based upon the permission, this petitioner purchased the granted land on 03.08.2011 by valuable consideration and sale was as per the provisions of Section 4(2) of the PTCL Act. Thereby, the petitioner is entitled to the property in view of permission granted by the Government. The petitioner was not a party before the Deputy Commissioner. The Deputy Commissioner setting aside the order of the Assistant Commissioner is not correct and the Limitation Act is not applicable to the Quasi Judicial Authorities. Therefore, the order under challenge is liable to be set aside. Hence, prayed for allowing the petition.
5. Per contra, learned counsel appearing for the respondent No.3 strenuously contended that the land has been sold in the year 1974 prior to the commencement of the Act and as per their grant certificate, only 10 years bar for alienating the granted land as per their saguvali chit issued. The land was granted in the year 1949, but the sale was effected in the year 1974 after 10 years or 15 years. There is no violation or contravention of any grant Rules and even otherwise, there is no effort/action taken from 1979 till 2005. The application filed by the grantee only in the year 2005. There is an inordinate delay in filing the restoration application and therefore, the order of resumption and restoration is not sustainable. Learned counsel for the respondent has also relied upon the judgment of the Hon’ble Apex Court in the case of Nekkanti Rama Lakshmi vs. State of Karnataka and another [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) and also 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 and contended that the very restoration of the order is not sustainable in view of allowing the delay and laches. Another contention also taken by the counsel is that the very permission granted by the Special Deputy Commissioner on 09.03.2011 is obtained by way of production of some other documents, that was confirmed by an enquiry made by the Tahsildar, the permission has been obtained by the parties by producing some other documents. The enquiry report has been sent to the Principal Secretary, Revenue Department for taking further course of action. Therefore, the very permission under Section 4(2) of the Act obtained from the Government for the purpose of purchasing the property itself is playing fraud. Therefore, that the permission cannot be considered as legal permission and also contended that even otherwise, if the land is granted by the Government by taking complete Ban for alienation, such being the case, the Authorities have no power for granting any permission for alienating the granted land. In support of his contention, he has relied upon the judgment of this Court in the case of Mohammad Yusuf Khan vs. The Special Deputy Commissioner, Bangalore District and Others reported in ILR 2012 KAR 3863 and prays for dismissing the petition.
6. Learned HCGP supports the order of the Deputy Commissioner and contended that the order of the Deputy Commissioner shows that there are no documents available for holding that the land was granted land or not. In fact, the LCR of the Assistant Commissioner clearly shows that the records are available in respect of granting the land to the original grantee Muniyappa who belongs to Scheduled Castes/Scheduled Tribes, the land falls under Section 3(1)(b) of the PTCL Act. However, admits that there is an inordinate delay of 30 years in filing the restoration application. The Deputy Commissioner has allowed the appeal. Therefore, the order of the Deputy Commissioner required to be upheld. Learned counsel for the respondent also brought to the notice of this Court that the grantee also filed a writ petition before this Court in W.P.No.39674/2013 against the order of the Deputy Commissioner for having allowing the appeal filed by the purchaser and later it was withdrawn which attained finality.
7. However, the learned HCGP submits that the permission has been accorded by the special Deputy Commissioner on 09.03.2011 by verifying the application filed by the grantee along with the documents furnished their on. After granting of permission, the grantee sold the land to the present petitioner on 03.08.2011 and subsequently on the complaint made by respondent No.3 here in before the Assistant Commissioner and Tahsildar, it reveals that the permission has been obtained by producing some other documents other than the grant certificate and other documents, a preliminary enquiry has been held and now, it is pending for regular enquiry. Such being the case, the learned HCGP prays for dismissing the writ petition.
8. Learned counsel for the petitioner in reply has contended that though the saguvali chit shows that there is a bar for alienation of the property for 10 years, but as per the Land Grant Rules prevailing in the year 1949, there is a total ban forever for alienation of property. Therefore, whatever may be mentioned in the saguvali chit for 10 years non-alienation of the property, the saguvali chit not prevail over the Grant Rules existing in the year 1949. Therefore, without obtaining any permission from the Government, any alienation of the land of the grantee to the purchaser after 1978, there is clear contravention of the provisions of Section 4 of the PTCL Act. Therefore, prayed for allowing the petition.
9. In support of his contention, the learned counsel for the petitioner also relied upon the judgment of this Court in the case of Smt. Chowdamma vs. Special Deputy Commissioner, Bangalore and Others reporting in ILR 2002 KAR 3734.
10. Upon hearing the arguments of learned counsel and on perusal of the records, the only point that arise for my consideration are:
“Whether the order of the Deputy Commissioner vide Annexure-F dated 06.08.2013 is sustainable.”
11. On perusal of the record, it is an admitted fact that the land in question measuring 2 acres has been granted to Muniyappa vide order dated 20.06.1949 to the grand father of respondent Nos.4 to 6 and subsequently, the said land has been sold to Revanasiddappa and in turn sold the said property to Narasimha Reddy on 10.09.1979, thereafter again the said Revanasiddappa sold the said land to Narasimha Reddy then the said Narasimha Reddy sold the land to S.K.Nataraju and S.K.Ravikumar on 18.08.1983. Subsequently, the said S.K.Nataraju and S.K.Ravikumar sold the land to Pallagondappa Hollappa on 06.05.1987. The said Pallagondappa Hollappa also sold the land to T.S.Bylappa vide sale deed dated 11.11.1992. Thereafter, the said Pallagondappa Hollappa sold the land to T.S.Bylappa and children of T.S.Bylappa also obtained the order of conversion on 01.01.1993. Thereafter, the same was sold to Umar Khatri-respondent No.3 on 18.08.2005. Then it is also not in dispute that in the year 2005, the LRs of the original grantee has filed an application for restoration of the land and accordingly, the Assistant Commissioner after making an enquiry restored the land in favour of the LRs of the grantee vide order dated 31.05.2008.
12. Assailing the order passed by the Assistant Commissioner, the purchaser Umar Khatri filed an appeal before the Deputy Commissioner in No.SC.ST.(A) 19/2010- 11, dated 06.08.2013 and it is seen from the records that during the pendency of the appeal and based upon the order passed by the Assistant Commissioner, the LRs of the grantee and this petitioner filed an application before the Special Deputy Commissioner for granting permission under Section 4(2) of the PTCL Act and accordingly, the Government accorded the permission for alienation on 09.03.2011 and based upon the permission, the LRs of the grantee sold the land to the present petitioner on 03.05.2011 by executing the sale deed. Subsequent to the execution of sale deed, the Deputy Commissioner passed an order by allowing the appeal filed by respondent No.3 and set aside the order of restoration passed by the Assistant Commissioner. The same is challenged before this Court by the purchaser.
13. Perused the records, the learned counsel for the petitioner has contended that once the land has been purchased by the petitioner by obtaining the sanction order from the Authorities under the law, the same cannot be questioned in this case until challenging the permission granted by the authorities and even the permission has been granted after verifying the documents produced by the petitioner as well as the LRs of the grantee. Learned counsel also submits that he has not aware about the preliminary enquiry made by the Authorities for having disputed the very permission order granted by the authorities. Once, the permission granted, no one can challenge the same before this Court in this proceedings and as on the date of grant in the year 1949 Grant Rules, there is a complete ban for alienation. Admittedly, the first alienation took place in the year 1974 in favour of Revanasiddappa and in view of Section 4(1) of the PTCL Act, any alienation in contravention of the Act on or before the commencement of the Act from 1.1.1979, the sale deeds are void. Admittedly, there is no dispute in this regard and even after commencement of the Act, there were four sale deeds effected on 10.09.1979, 19.08.1983, 11.11.1992 and finally on 18.08.2005.
14. The learned counsel for the petitioner submitted that based upon the complete ban for alienation of the land, the Assistant Commissioner has restored the land in favour of the original grantee. However, the learned counsel for the respondent No.3 mainly challenged the order of the Assistant Commissioner on the ground of delay. In support of his case, the learned counsel has relied upon the judgment of Hon’ble Apex Court in the case of Nekkanti Rama Lakshmi (supra) wherein the Hon’ble Apex Court has held at para 8 of the judgment 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.”
15. Another judgment in the case of Vivek M. Hinduja and Others vs. M.Ashwatha and Others., reported in 2018 (1) Kar.L.R 176 (SC) has held that the party ought to have approached the Competent Authorities within reasonable time beyond which no relief can be granted. Here, in this case admittedly, the restoration application filed in the year 2005. The sale deed were effected in the year 1974 more than 30 years, even the second sale deed was held in the year 1979 and admittedly, there is a delay of 26 years in filing the application. However, while filing the application by the grantee for restoration, the delay contention is not been raised by the purchaser and vendors of respondent No.3 and even in the appeal memo before the Deputy Commissioner the respondent No.3 not urged any ground regarding the delay. However, the delay has been raised by respondent No.3 before this Court in the reply argument. However, the Deputy Commissioner has stated that there is a delay of 30 years, in this regard the learned counsel for the petitioner has contended that there is no opportunity given to the LRs of the grantee for explaining the delay in filing the restoration application. Such being the case, the question of allowing the appeal by the learned Deputy Commissioner is not sustainable. In support of his contention, the learned counsel for the petitioner has relied upon the judgment of Division Bench of this Court in the case of Smt.P.Kamala vs. The State of Karnataka and others reported in ILR 2019 KAR 3301 wherein the Division Bench of this Court has set aside the order passed by the learned Single Judge and remanded the matter back for giving an opportunity for the LRs of the grantee for explaining the delay on the principles of natural Justice.
16. Admittedly, the Deputy Commissioner has passed the order allowing the appeal by considering the delay of 30 years in filing the restoration application. But the learned Deputy Commissioner has not given any opportunity for the LRs of the grantee for explaining the delay. That apart, even there is no ground urged by the purchaser while filing the appeal regarding delay in their appeal memo. Such being the case, the learned Deputy Commissioner ought to have granted an opportunity for the LRs of the grantee either to explain the delay or he might have remanded back to the Assistant Commissioner for fresh enquiry. Therefore without giving an opportunity to the LRs of the grantee, passed an order on the ground of delay. As contended by the learned senior counsel for the petitioner, the order of learned Deputy Commissioner is not sustainable in view of the judgment of the Division Bench of this Court in the case of Smt.P.Kamala and the matter required to be remanded back for fresh consideration.
17. The other ground urged by the learned counsel for the respondent is only on the ground of permission granted by the Authorities were not sustainable. In this regard, the learned counsel has relied upon the judgment of this Court in the case of Mohammad Yusuf Khan (supra) wherein para Nos.5 and 6 reads as under:
“5.This position is illustrated in the present case itself. In the instant case, Smt.Muniyamma had applied for permission for selling the granted land, under Section 4(2) of the PTCL Act which appears to have been granted by the Government by Order dated 29.12.2009. Pursuant to that permission, Smt.Muniyamma sold the granted land further, on 20.02.2010 to Smt.Muppavapa Rama Thulasamma. In a series of decisions, the Single Benches as well as the Division Benches of this Court have clarified that the PTCL Act operates wherever granted land has been sold contrary to the covenants contained in the Grant or Saguvali Chit. In the present case, there is a clear violation of the covenant of the Grant. This may not always be the position. For example, there may be a Grant made in the year 1955 containing prohibition of alienation for a period of 15 years. In such a case, it would be free to sell the land after the year 1970. If a sale is effected after the expiry of the said 15 years but before the commencement of the PTCL Act, i.e., 01.01.1979, the transaction would not be void. This is, it appears to us, the sole ambit of Section 4(2) of the Act. When an application is made to the appropriate authorities, these factors have to be looked into. If permission is granted contrary to the covenants of the Grant, it would violate the intendment of the PTCL Act itself and would also create disparity and unjust situations inasmuch as some persons may be accorded permissions to purchase granted lands contrary to the covenants. In the case in hand, prima facie, permission ought not to have been granted under Section 4(2) of the Act; we say this because the Grant before us contains a permanent non- alienation clause. In granting permission, the Authorities has transgressed and violated the terms of the Grant itself.
6. In accordance with several judgments of this Court, it now appears that the Government has issued a Circular dated 07.07.2012 clarifying the position and cautioning the officers against failing to take possession to the State of lands which have been sold or alienated contrary to the terms of the Grant, obviously where no orders to the contrary have been passed by a competent Court. To this, we may only add that the Grant of permission under Section 4(2) should not be a matter of course and could possibly be granted only in those cases, where the covenants of the Grant are not violated. This is where a sale is proposed to be entered into after 01.01.1979 and where the appropriate Authorities finds that because of the terms of the Grant, sale is permissible. We reiterate that it is not possible to Grant permission under Section 4(2) of the Act where a permanent non-alienation clause is found in the Grant itself. This issue is not directly before us and we expect the State Government to take appropriate remedial action in this regard.”
18. Learned counsel for the petitioner has stated that the issue of permission by the Deputy Commissioner is not challenged before the Court in this writ petition and remedy is available before the State Government. Therefore, issue raised by the learned counsel for the respondent No.3 according permission in respect of the land in question about the complete non-alienation where the Government cannot accord the permission, this issue has not been urged either before the Deputy Commissioner or the Assistant Commissioner. However, respondent No.3 is not a party before the Assistant Commissioner. However, the vendor of respondent No.3 was the party to the proceedings before the Assistant Commissioner. Such being the case, the question of raising point that he is not a party before the Assistant Commissioner is not sustainable, whether the permission granted by the Authorities are genuine or not, yet to ascertain now the enquiry is pending before the Authorities. Such being the case, this Court do not want to express any opinion in respect of validity or genuiness of the permission granted by the State on 09.03.2011 to alienation.
19. In the case of Satyan vs. Deputy Commissioner & Others reported in AIR 2019 SC 2797 wherein in the similar situation, though the Hon’ble Apex Court has allowed the restoration application which was filed within 10 years as held that, it is not inordinate delay. However, in the said case, the permission has been obtained by committing fraud and a criminal prosecution was also launched. Therefore, as I held above, I do not want to express any opinion on the genuiness and validity of the permission accorded by the State and in view of non-according opportunity to the LRs of the grantee, the matter required to be remanded back to the Assistant Commissioner for fresh enquiry by keeping open all the contentions raised by the parties.
Therefore, the order of the Deputy Commissioner and the Assistant Commissioner are liable to be set aside.
Accordingly, the writ petition is allowed.
The order of the Deputy Commissioner and the Assistant Commissioner are hereby set aside. The matter is remanded back to the Assistant Commissioner for fresh enquiry after giving an opportunity of hearing to the parties for raising their respective contention before him and dispose of the matter in accordance with law by passing appropriate order as early as possible.
SD/- JUDGE GBB