IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF DECEMBER 2019 BEFORE THE HON'BLE MR.JUSTICE K.NATARAJAN W.P.No.45868/2017 (SC/ST) BETWEEN:
Smt.Jayanthi Shivram Wife of Shivram Aged about 46 years r/a. No.109, 4th Cross R.K. Layout, Padmanabhanagar Bengaluru – 560 070 …PETITIONER (By Sri.P.P.Hegde, Advocate) AND:
1. State of Karnataka Rep. by its Secretary Revenue Department M.S.Building Bengaluru – 560 001 2. The Deputy Commissioner Bengaluru Urban District Bengaluru – 560 009 3. The Asst. Commissioner Bangalore South Sub-Division Bengaluru – 560 004 4. Smt.Vajramma d/o. late Depot Muniyappa r/a. A.K.Colony Talaghattapura Village & Post Uttarahalli Hobli Bengaluru – 560 061 …RESPONDENTS (By Smt.Savithramma, HCGP for R1 to R3; Sri.C.M.Nagabhushan, Advocate for R4) ******* This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the order dated 21.07.2015 passed by the Asst. Commissioner, Bengaluru Sub-Division in Case No.K.SC.ST.(S).14/2014-15 at Annexure-A and quash the order dated 7.2.2017 passed by the Deputy Commissioner, Bangalore District in case No.K.SC&ST(A).81/2015-16 at Annexure-B.
This Writ Petition coming on for orders this day, the Court made the following:
O R D E R This petition is filed by the petitioner/purchaser of the land, assailing the order passed by the respondent No.3 - Assistant Commissioner vide Annexure-‘A’ dated 21.07.2015 which was confirmed by the second respondent – Deputy Commissioner vide Annexure-‘B’ dated 07.02.2017.
Heard learned counsel for the petitioner as well as respondent No.4 and learned High Court Government Pleader for the respondent Nos.1 to 3.
2. The case of the petitioner is that, the land in Sy.No.12/7 of Manavarthekaval village, Uttarahalli Hobli, Bengaluru South Taluk measuring 1 acre 36 guntas was granted in favour of one Sri.Depot Muniyappa on 21.06.1957 and in turn the said Sri.Depot Muniyappa along with his wife and daughter sold two acres of land in favour of the petitioner vide sale deed dated 30.05.1995 and the daughter of the original grantee Smt.Tayamma @ Vajramma filed an application before the Assistant Commissioner in case No.K.SC&ST(S)14/2014-15 under section 5 of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act 1978 (“PTCL Act” for short) for resumption and restoration of the land in the year 2014 – 2015. Learned Assistant Commissioner after considering the evidence on record, allowed the application, restored the land in favour of the original grantee on the ground that sale deed dated 30.05.1995 executed in favour of the petitioner is void as per section 4(2) of the PTCL Act. Assailing the same, the petitioner filed an appeal before the Deputy Commissioner – respondent No.2 in case No.K.SC&ST(A).81/2015-16 and the Deputy Commissioner vide order dated 07.02.2017 also dismissed the appeal confirming the order of the Assistant Commissioner. Assailing the same, the petitioner/purchaser is before this Court.
3(1) Learned counsel for the petitioner mainly challenged the order of the respondent Nos.2 and 3 on the ground of delay and latches and contended that though the land has been granted in the year 1957 with a condition of non-alienation clause of 15 years imposed, that was completed prior to the commencement of the PTCL Act. The sale deed was effected in the year 1995, but the very legal representative of the original grantee who was also a signatory to the sale deed along with her father, files an application in the year 2014-2015, after lapse of 19 years.
There is inordinate delay in filing the restoration application. The delay was not properly explained by the legal representative of the grantee and it cannot be said that the legal representative of the grantee has no knowledge about the sale deed. She herself is a signatory to the sale deed. Even the delay ground has been raised by the petitioner before the Assistant Commissioner as well as Deputy Commissioner. Therefore, in view of the long delay and latches on the part of the legal representative of the grantee, the orders under challenge are not sustainable.
(2) In support of his contentions, learned counsel relied upon the judgments of the Hon’ble Apex Court and Division Bench of this Court in the following cases:-
(i) VIVEK M.HINDUJA & Others vs. M.ASHWATHA & Others reported in 2017 SCC OnLine SC 1858;
(ii) NEKKANTI RAMA LAKSHMI vs. STATE OF KARNATAKA & Another reported in 2017 SCC OnLine SC 1862;
(iii) CHHEDI LAL YADAV & Others vs. HARI KISHORE YADAV & Others reported in (2018) 12 SCC 527;
(iv) Smt.NINGAMMA vs. THE TIBETIAN CHILDREN’s VILLAGE & Others in Writ Appeal No.4092/2017 decided on 09.04.2019; and (v) P.KAMALA vs. STATE OF KARNATAKA in W.A.Nos.596-597/2016 and connected cases decided on 8.7.2019.
Learned counsel contended that even the Division Bench of this Court in P.KAMALA’s case referred to supra, has directed the Hon’ble Single Judge of this Court for granting some time for explaining the delay and latches by the legal representative of the grantee and the same has been stayed by the Hon’ble Apex Court in the case of P.KAMALA vs. STATE OF KARNATAKA in Special Leave to Appeal (C) Nos.25606-25613/2019 dated 8.11.2019 and further relied on the judgment of the Hon’ble Apex Court in JAGADISH vs. STATE OF KARNATAKA & Others in Civil Appeal Nos.4367-4372 of 2016, wherein the Hon’ble Apex Court by considering all the above said judgments and set aside the order of restoration after inordinate delay in filing the restoration application. He therefore prayed for allowing the petition.
4. Per contra, learned counsel appearing for respondent No.4 has seriously contended that the very sale deed was effected in the year 1995 after the commencement of the PTCL Act from 1.1.1979. By operation of law under section 4(2) of the PTCL Act, the sale deed is void and the application came to be filed in the year 2014-2015 and that there is just 19 years delay and that delay cannot be considered as inordinate delay and the Division Bench of this Court in P.KAMALA’s case (supra) has directed the Hon’ble Single Judge to give an opportunity for the legal representative of the original grantee for explaining the delay. Such being the case, the Court should remand the matter to the Assistant Commissioner and the Deputy Commissioner for affording an opportunity to the legal representative of the grantee for condoning the delay and explaining the reasons for the delay. Hence, learned counsel has prayed for dismissal of the petition.
5. Learned HCGP Smt.Savithramma has supported the orders passed by the authorities. However, learned HCGP has contended that there is a delay of 19 years in filing the restoration application and also contended the very sale which is effected only after commencement of the PTCL Act where the permission of the Government is mandatory under section 4(2) of the PTCL Act and hence prayed for dismissal of the petition.
6. Upon hearing the learned counsel for the parties and on perusal of the records, a short question that arises for consideration of this Court is, Whether the orders under challenge passed by the Deputy Commissioner (respondent No.2) and the Assistant Commissioner (respondent No.3) are sustainable in view of delay of 19 years in filing the restoration application?
7. On perusal of the record, it is an admitted fact that the land in question has been granted in favour of Depot Muniyappa on 21.06.1957 and as per the grant rules, the land shall not be alienated for 15 years. Admittedly, the sale deed was effected in the year 1995, however, it is after the commencement of the PTCL Act with effect from 01.01.1979. By operation of law under section 4(2) of the PTCL Act, any sale deed without the permission of the Government is void. Admittedly, the sale deed of the petitioner dated 30.05.1995 is in contravention of section 4(2) of the PTCL Act. However, application came to be filed by the legal representative of the grantee (respondent No.4) only in the year 2014-15, almost after a period of 19 years from the date of execution of the sale deed. Admittedly, the respondent No.4 also is one of the signatories to the sale deed as daughter along with her parents and no explanation is offered by the respondent No.4 before the Assistant Commissioner or the Deputy Commissioner and even before this Court by filing any affidavit for explaining the delay. In view of the judgments passed by the Hon’ble Apex Court in the case of Nekkanti Rama Lakshmi, Vivek M.Hinduja and Chhedi Lal Yadav referred to supra, wherein the Hon’ble Apex Court has categorically held that if there is delay in taking action by the authorities either suo motu or on the application of the legal representatives of the grantee within a reasonable time, the restoration application cannot be sustainable. By relying upon the judgment of the Hon’ble Apex Court, the Division Bench of this Court in W.A.No.4092/2017 dated 09.04.2019 in the case of Smt.Ningamma referred to supra, has upheld the order of the learned Single Bench quashing the order of the Deputy Commissioner and the order of Assistant Commissioner in view of delay of 12 years in filing the application and the learned counsel for the petitioner also has produced the latest judgment of the Hon’ble Apex Court in the case of JAGADISH vs. STATE OF KARNATAKA & Others in Civil Appeal Nos.4367-4372 of 2016 dated 29.08.2019. The Hon’ble Apex Court has held in para 12 of its judgment as follows:-
“12. There are number of issues raised before us calling for the inter se play of the Inams Abolition Act and the SC & ST Act. We, however, do not see the need to examine them as, according to us, the appellant is disentitled to any relief on the short ground of having knocked the doors of the concerned authorities three decades after the SC & ST Act came into force. It is this very aspect which forms subject matter of debate in a number of judgments and finally in Satyan’s case (supra), (they have been discussed Para 12 extracted hereinabove). It was recognized that there was no limitation of time prescribed but it should be exercised within a reasonable period of time. It is in that context that period of 20 years have been said to be too long a period for calling for interference by the concerned authorities. Leave the said period, in the present case, we are confronted with the factual situation of 30 years period between the rights accruing and the exercise of rights. In the meantime, the lands have been developed by the private respondents who, according to us, is bona fide purchaser of the land and created infrastructure on the same.
It does seem now an endeavour of the appellant to only extract some amount knowing fully well the kind of establishment which has come up on the land in question. We cannot be a part to such endeavour. We are, thus, of the view that in the conspectuous of the legal position discussed aforesaid and the facts referred to by us, the appellant is disentitled to any relief on this short ground of an inordinate delay in seeking to avail of their remedy in limine. Insofar as the other aspects raised in the present appeals are concerned, we are leaving the questions of law open since we are not required to comment on the same for adjudication of the present controversy.”
8. In view of the aforesaid judgment of the Hon’ble Apex Court wherein the Hon’ble Apex Court has categorically held that, if there is any inordinate delay in filing the restoration application, the order of restoration cannot be sustainable. Therefore, in view of delay of 19 years in filing the restoration application, the order passed by both the authorities cannot be sustained in view of the delay and latches. For the reasons mentioned above, the writ petition deserves to be allowed.
Accordingly, the writ petition is allowed. The impugned orders dated 21.07.2015 and 07.02.2017 passed by both the authorities (respondent Nos.2 and 3) are set-aside.
In view of disposal of the writ petition, I.A.1/2019 has become infructuous and accordingly, it is disposed of.
Sd/- JUDGE Bss.