IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION NOS.21033-21034/2012 (SC-ST) Between:
1. Siddegowda Aged about 68 years S/o Siddanahalli Kempegowda 2. Sakamma Aged about 60 years W/o Siddegowda Both are residents of Nallahalli, Keragodu Hobli Mandya Taluk & District.
(By Sri.M.Vinaya Keerthy, Advocate) And:
1. Dy. Commissioner Mandya District, Mandya.
2. Asst. Commissioner Mandya Taluk, Mandya District.
3. Jayamma Aged about 55 years W/o Girishetty @ Puttaswamy ... Petitioners Yeraganahalli, Maddur Taluk Mandya District.
... Respondents (By Smt.Savithramma, HCGP for R1 & R2 Sri.K.S.Kalleshappa, Advocate for R3) ***** These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order dated 05.06.2012 passed by R1 vide Annexure-H and etc.
These Writ Petitions coming on for Orders, this day, the Court made the following:
ORDER The petitioners are the purchasers of land in Sy.No.15, New No.160 of Nallahalli, Keragodu Hobli, Mandya Taluk and District. The 1st petitioner had purchased an extent of 20 guntas of land through registered sale deed dated 11.06.1973 and is stated to be in possession and enjoyment of the said land. It is stated that an extent of 1 acre in Sy.No.15 was granted in favour of Venkata Shetty on 03.01.1955. Out of the said extent of 1 acre, the petitioner is said to have purchased an extent of 20 guntas through sale deed dated 11.06.1973 executed by the grantee. The proceedings have been initiated before the 2nd respondent–Assistant Commissioner for resumption and restoration of the land to an extent of 20 guntas in Sy.No.15 in the year 1990-91 by the wife of the grantee. The Assistant Commissioner, while observing that the Rule in force provides for non-alienation of land for 10 years, has recorded that as the sale transaction was after a period of 10 years, no interference was called for under the provisions of PTCL Act. The said matter was taken up before the Deputy Commissioner in the year 2011 in RA.PTCL No.4/2011 and the Deputy Commissioner while observing that the Rule in force provided for non-alienation of land for 20 years, has held that the provisions of the Act are applicable and has set aside the order of the Assistant Commissioner and ordered for resumption and restoration of the land to the legal representatives of the appellant– Smt.Jayamma wife of Giri Shetty.
2. That the petitioners have assailed the said order and contends that the order of the Deputy Commissioner is to be set aside and the proceedings initiated under the said Act are also liable to be set aside on the sole ground that the Assistant Commissioner was approached belatedly. Additional grounds have been raised as regards the said contention. Right to approach the authorities accrues on the date of the sale dated 11.06.1973 whereas the Assistant Commissioner was approached only in the year 1990 and hence, it is contended that there was a delay of 17 years on behalf of the grantee in approaching the Assistant Commissioner.
3. Taking note of the decisions of the Apex court in the case of Nekkanti Rama Lakshmi Vs. State of Karnataka and another in Civil Appeal No.1390/2009 (Dated 26.10.2017) and Vivek M.Hinduja and others Vs. M.Ashwatha and others in Civil Appeal No.2166/2009 (Dated 06.12.2017), it is clear that the grantees are required to approach the authority within a reasonable period of time. If the order of the Deputy Commissioner is to be taken note of and the finding is accepted, it is clear that the period of prohibition for alienation was 20 years as on the date of grant, then the sale executed on 11.06.1973 was in breach of the condition of non-alienation as provided under the Act. Hence, right of sue would accrue immediately on the date of sale. It is also to be noted that in view of the judgment of the Apex Court which has reiterated a well established principle that power must be exercised within a reasonable period of time, the belated approaching of the Assistant Commissioner would itself operate as a jurisdictional bar. Hence, the Assistant Commissioner could not have entertained the petition of the grantee. However, it is noticed that the proceedings initiated before the Assistant Commissioner was in the year 1990-91 and no reasons are forthcoming explaining such delay. Following the ratio laid down in the cases of Nekkanti Rama Lakshmi and Vivek M.Hinduja, it is held that the proceedings initiated after unreasonable period of time and without any explanation for delay cannot be entertained by the Assistant Commissioner.
4. The counsel for the petitioners has relied on judgment of the Apex Court in the case of Manchegowda and others Vs. State of Karnataka (1984) 3 SCC 301. However, the said judgment having been considered in Nekkati Rama Lakshmi and Vivek M. Hinduja (supra), the question of considering the said contention relying on the raised question does not arise.
5. Accordingly, Writ Petitions are allowed. The order of the Deputy Commissioner passed in RA.PTCL No.04/2011 dated 05.06.2012 at Annexure-H is set aside.
Sd/- JUDGE Prs*