IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN WRIT PETITION NO. 48926 OF 2014 (SC/ST) BETWEEN:
1. KUBERAPPA, DEAD BY HIS LRS, 1(a). KENCHAMMA, W/O. LATE KUBERAPPA, AGED ABOUT 50 YEARS, 1(b). RAMESH S.K., S/O LATE KUBERAPPA, AGED ABOUT 34 YEARS, 1(c). HARISH S.K., S/O LATE KUBERAPPA, AGED ABOUT 33 YEARS, 1(d). YATHIRAJ S.K., LATE KUBERAPPA, AGED ABOUT 25 YEARS, PETITIONERS NO.1(a) TO 1(d) ARE RESIDING AT GOPAGONDANAHALLI, HONNALI TALUK, DAVANGERE DISTRICT - 577 002.
2. GURUBASAPPA, S/O LATE MAHADEVAPPA, AGED ABOUT 40 YEARS, 3. JAYAPPA, S/O LATE MAHADEVAPPA, AGED ABOUT 37 YEARS, PETITIONERS 1 TO 3 ARE RESIDING AT H.GOPAGONDAHALLI VILLAGE, HONNALI TALUK, DAVANGERE DISTRICT - 577 002.
(BY SRI NATARAJ C.D., ADVOCATE FOR SRI PRUTHVI WODEYAR, ADVOCATE) AND:
1. THE DEPUTY COMMISSIONER, DAVANGERE DISTRICT, DAVANGERE - 577 002.
2. THE ASSISTANT COMMISSIONER, DAVANGERE SUB DIVISION, DAVANGERE - 577 002.
3. A.K. HANUMANTHAPPA, S/O LATE NIMBAPPA, AGED ABOUT 65 YEARS, H. GOPAGONDAHALLI VILLAGE, HONNALI TALUK, DAVANGERE DISTRICT - 577 002.
...PETITIONERS 4. MANJAPPA, S/O LATE SANNABASAPPA, AGED ABOUT 68 YEARS, H. GOPAGONDAHALLI VILLAGE, HONNALI TALUK, DAVANGERE DISTRICT - 577 002.
… RESPONDENTS (BY SMT. SAVITHRAMMA, HCGP FOR R1 & R2; R3 IS SERVED BUT UNREPRESENTED;
R4 IS DELETED VIDE COURT ORDER DATED 30.10.2014.) * * * THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 22.09.2014 PASSED BY R-1 AND THE ORDER DATED 07.11.2012 PASSED BY R-2 VIDE ANNEXURE-D & C AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This petition is filed by the petitioner assailing the order passed by respondent No.1-Deputy Commissioner, Davangere District, Davangere dated 22.09.2014 by confirming the order of respondent No.2-Assistant Commissioner, Davangere Sub Division, Davangere passed on 07.11.2012 in Annexure-C in No.PTCL/95/09-10.
2. Heard the learned counsel for the petitioners as well as learned HCGP.
Respondent No.3 served, but unrepresented.
3. The case of the petitioner is that the land in survey No.102 (134) has been granted to Nimbappa, the father of respondent No.3 on 08.02.1955 with certain conditions. However, the said Nimbappa sold the land to Sannabasappa on 01.02.1962 and in turn the said Sannabasappa sold the said land to Mallappa, father of the deceased petitioner-Kuberappa vide sale deed dated 17.11.1965. Consequent to the commencement of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands Act), 1978 the LRs of the grantees i.e., respondent No.3 filed an application before the Assistant Commissioner under Section 5 of PTCL Act for resumption and restoration of the granted land. The Assistant Commissioner by his order vide Annexure-C dated 07.11.2012 resumed the land in question and restored to the LRs of the grantee. Assailing the order of the Assistant Commissioner, the petitioner filed an appeal before the Deputy Commissioner in PTCL/CR-13/2012-13. The learned Deputy Commissioner passed the order Annexure-D by confirming the order passed by the Assistant Commissioner. Hence, petitioners before this Court.
4. Learned counsel for the petitioners has contended that the land in question was granted in the year 1955. Though there may be certain conditions, but it was sold in the year 1962 to Sannabasappa by the original grantee and subsequently, after three years on 17.11.1965, the father of the deceased petitioner Mallappa had purchased the property from Sannabasappa. But the LRs of the grantee filed the restoration application in the year 2009 after 44 years of sale and filed the application ie., inordinate delay in filing the application. But, both respondent Nos.1 and 2 have not considered the inordinate delay in filing the application for restoration.
5. It is also contended that 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 Chhedi Lal Yadav and others vs. Hari Kishore Yadav (D) Thr. LRs and others [2018 (1) Kar.L.R 1(SC) has set aside the order of restoration on the ground of inordinate delay. Here in this case, respondent No.3 has not explained the delay of 44 years in filing the restoration application. Such being the case, respondent Nos.1 and 2 ought to have dismissed the application filed by respondent No.3 but committed error in allowing the application. Hence, prayed for allowing the petition.
6. Per contra, learned HCGP - Smt. Savithramma has contended that though the land in question sold in the year 1962 or 1965, but, there was a violation of the land grant condition. There was restriction of 15 years for non alienation of the land while grant made in the year 1955. Therefore, there is contravention of terms and conditions of the land grant order as per Section 4(1) of the PTCL Act. Therefore, the sale deeds are void. Hence, the learned HCGP has supported the orders passed by respondent Nos.1 and 2 and prayed for dismissal of the writ petition.
7. However, respondent No.3 – legal heirs of grantee served with notice, but not represented.
8. Upon hearing the arguments of the learned counsel for the petitioners and learned HCGP and on perusal of the records, there is no dispute in respect of land in survey No.102 (134) measuring 3 acre 33 guntas which has been granted to the father of respondent No.3 Nimbappa. It is also not in dispute that Sannabasappa had purchased the land in question during the year 1962 and subsequently, the said Sannabasappa in turn sold the said land to Mallappa, the father of the deceased petitioner vide sale deed dated 17.11.1965. Admittedly, the PTCL Act, 1978, came into force with effect from 01.01.1979. Respondent No.3, being the applicant filed the application under Section 5 of the PTCL Act before the Assistant Commissioner in the year 2009, the Assistant Commissioner as well as the Deputy Commissioner restored the land to the LRs of the original grantee.
9. No doubt, on perusal of the sale deed dated 01.02.1962 and 1965, there is a violation of terms of the grant as the land grant which was sold within 15 years from the date of its grant. However, in view of the commencement of the PTCL Act, 1978 w.e.f 01.01.1979 as per Section 4(1), if any land granted and sold in violation or contravention of the grant order, the same is null and void and as per Sec 4(2) of the Act. After commencement of the Act, no land shall be sold without prior permission of the Government and the transfer is void.
10. However, there may be violation and contravention of terms and conditions of grant order and non alienation clause of land for fifteen years. However, the application filed by the applicant after 47 years of the first sale deed effected in the year 1962 and after 44 years after second sale deed effected in the name of the father of the deceased petitioner and the PTCL came into force from 01.01.1979 and the application filed after 30 years of the commencement of the Act.
11. In this regard, Hon’ble Apex Court in the case of Nekkanti Rama Lakshmi (supra) held at paragraph 8 of its judgment as follows:
“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 sou 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 unreasonable 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 4 of the Act and therefore, an application can be made at any time, are overruled. Order accordingly.”
12. The Hon’ble Apex Court in the case of Chhedi Lal Yadav and others vs. Hari Kishore Yadav (D) Thr. LRs and others [2018 (1) Kar.L.R 1(SC) has held that the statute does not provide for a period of limitation, the provisions of statute must be invoked within a reasonable time. The Hon’ble Apex Court also held in the said case, whether on the application of the parties or suo motu, action must be taken within a reasonable time and the Hon’ble Apex Court has set aside the order of resumption and restoration of the land in favour of the grantees on the ground of delay.
13. Relying upon the judgments of the Hon’ble Apex Court in the above said cases, the Division Bench of this Court in W.A.No.372/2019 (SC/ST) and connected matters in order dated 03.07.2019 has upheld the order of Single Judge in the Writ Petition for having setting aside the order of restoration by dismissing the Writ Appeal.
14. In view of the judgments of the Hon’ble Apex Court in the cases of Chhedi Lal Yadav and Nekkanti Rama Lakshmi (supra) and the Division Bench of this Court in writ appeal stated supra and this case in hand, land was sold in the year 1962 and the application came to be filed after 47 years of the first alienation and 44 years in challenging after the second alienation and 30 years after the commencement of the Act, there is inordinate delay in filing the restoration application by the LRs of the grantee which was not properly explained. In view of the principles of laid down by the Hon’ble Apex Court and due to delay of 44 years in challenging the alleged sale, the impugned order passed by 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 in No.PTCL/CR- 13/2012-13 dated 07.11.2012 and in No.PTCL/95/09-10 passed by respondent No.2 are hereby set aside.
Sd/- JUDGE GBB