IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No.40164/2012(SC-ST) BETWEEN:
1. GOPALA GOUNDAR AGED ABOUT 72 YEARS S/O. YALLAPPA GOUNDAR R/O.MADAPURA VILLAGE HONNALI TALUK DAVANAGERE DISTRICT PIN-577 217. SINCE DEAD BY HIS LR’S 1(a) SUBRAMANI AGED ABOUT 58 YEARS S/O LATE.GOPALA GOUNDAR @ GOPALAPPA 1(b) MURTHYAPPA, AGED ABOUT 55 YEARS S/O LATE. GOPALA GOUNDAR @ GOPALAPPA BOTH ARE R/O MADAPURA VILLAGE BELGATTI HOBLI, HONNALI TALUK DAVANAGERE DISTRICT.
... PETITIONERS (BY SRI. CHIDAMBARA G S., ADV.) AND 1. THE DEPUTY COMMISSIONER DAVANAGERE DISTRICT DAVANAGERE-577 001.
2. THE ASSISTANT COMMISSIONER DAVANAGERE SUB-DIVISION DAVANAGERE-577 001.
3. TAHASILDAR HONNALI TALUK HONNALI-577 217 DAVANAGERE DISTRICT.
4. SMT. SOMLIBAI W/O. KRISHNANAIKA AGE NOT KNOWN BUT MAJOR R/O. MADAPURA VILLAGE HONNALI TALUK DAVANAGERE DISTRICT.
... RESPONDENTS (BY SMT. SAVITHRAMMA, HCGP. FOR R1-3, R4 IS DELETED VIDE COOURT ORDER DATED:14.03.2014) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER, VIDE ANNEXURE-B, DATED.16.7.12, PASSED BY THE R1 & ALSO QUASH THE ORDER VIDE ANNEXURE-A, DT.22.3.10, PASSED BY THE R2, ONLY IN SO FAR AS THEY RELATE TO THAT PART OF THE ORDER DIRECTING RESUMPTION & RESTORATION OF POSSESSION TO GOVT.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This writ petition is directed against the order dated 16.7.2012 passed by the respondent No.1- Deputy Commissioner vide Annexure-B and order dated 22.3.2010 passed by the respondent No.2- Assistant Commissioner vide Annexure-A.
2. The case of the petitioner is that the land bearing Sy.No.37/c of Madapura Village in Honnali Taluk measuring 3 acres 14 guntas was originally granted to one Lokyanaik s/o Kalyanaik on 19.8.1963. The said land was sold in favour of Somlibai by way registered sale deed dated 7.12.1970. The said Somlibai in turn sold the said land in favour of the petitioner-Gopala Goundar by registered sale deed dated 29.12.1972. The Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short “the Act”) came into force on 1.1.1979. One Gangadhara Naik claiming to be the legal representative of the original grantee filed an application under Sections 4 & 5 of the said Act in the year 2007-08 before the Assistant Commissioner for resumption of the granted land. The Assistant Commissioner by order dated 22.3.2010 allowed the said application and held that the applicant is not the legal representative of the original grantee and hence restored the land in favour of the State Government. Being aggrieved by the same, an appeal was filed by the petitioner before the Deputy Commissioner challenging the said order of the Assistant Commissioner. The Deputy Commissioner vide order dated 16.7.2012 dismissed the application and has confirmed the order of the Assistant Commissioner. Being aggrieved by the order of the Assistant Commissioner as well as the order of the Deputy Commissioner, the petitioner is before this Court.
3. The learned counsel appearing for the petitioner has contended that originally the land was granted to one Lokyanaik s/o Kalyanaik on 19.8.1963. The said land was sold in favour of Somlibai by way registered sale deed dated 7.12.1970. The said Somlibai in turn sold the said land in favour of the petitioner by registered sale deed dated 29.12.1972. The Act came into force on 1.1.1979. One Gangadhara Naik claiming to be the legal representative of the original grantee filed an application under Sections 4 & 5 of the said Act in the year 2007-08 for resumption of the land i.e., 28 years after the Act came into force. There is delay in filing the appeal before the Assistant Commissioner. In support of his case, he has relied upon the law laid down by the Hon’ble Supreme Court in the case of Nekkanti Rama Lakshmi –v- State of Karnataka and Another reported in 2018 (1) Kar. LR 5 (SC). Therefore, he sought for allowing the petition.
4. The learned HCGP appearing for the State submits that the land has been granted to the original grantee on 19.8.1963 and the condition prevailing as on the date of grant was 15 years. The property has been alienated before 15 years and hence, there is violation of terms of grant.
5. Heard the learned counsel appearing for the petitioner and learned HCGP for the State.
6. It is not in dispute that the land bearing land bearing Sy.No.37/c measuring 3 acres 14 guntas was originally granted to one Lokyanaik s/o Kalyanaik on 19.8.1963. The said land was sold in favour of Somlibai by way registered sale deed dated 7.12.1970. The said Somlibai in turn sold the said land in favour of the petitioner-Gopala Goundar by registered sale deed dated 29.12.1972. The Act came into force on 1.1.1979. One Gangadhara Naik claiming to be the legal representative of the original grantee filed an application under Sections 4 & 5 of the said Act in the year 2007-08 for resumption of the land before the Assistant Commissioner. There is delay of 28 years in invoking the provisions of Sections 4 and 5 of the Act. The Hon’ble Supreme Court in the case of Nekkanti Rama Lakshmi (supra) has held 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 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.”
7. As per the decision of the Hon’ble Supreme Court stated supra, for invoking the provisions of Sections 4 and 5, an application has to be filed within a reasonable time. In the case on hand, land was granted on 19.8.1963 and the first sale was taken place on 7.12.1970. The Act came into force with effect from 1.1.1979 and the application for resumption of granted land was filed in the year 2007-08. There is unreasonable delay of 28 years in invoking the provisions of Sections 4 and 5 of the Act. Hence, the application was liable to be dismissed.
8. In view of the observations made above, the orders passed by the Assistant Commissioner and Deputy Commissioner vide Annexures-A and B respectively are liable to be quashed.
9. Accordingly, the writ petition is allowed.
The order dated 16.7.2012 passed by the respondent No.1-Deputy Commissioner vide Annexure-B and order dated 22.3.2010 passed by the respondent No.2-Assistant Commissioner vide Annexure-A are hereby quashed.
Sd/- JUDGE DM