IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION NO.57343/2014 (SC/ST) Between:
Kariyamma (died on 19.02.2014) W/o Late Gantappa, Since dead by LR Lakshminarasimhaiah, Age:50 years, S/o Late Gantappa, R/o Thimmanahally village, Kandikore Hobli, C.N.Halli Taluk, Tumkur District. …Petitioner (By Sri.Patel D.Karegowda, Advocate) And 1. Deputy Commissioner, Tumkur District, Tumkur.
2. Assistant Commissioner, Tiptur Sub Division, Tiptur, Tumkuru District.
3. Kodandaramaiah, Major, S/o Krishnappa, Thimmanahalli, Kandikere Hobli, C.N.Halli Taluk, Tumkur District.
4. Ranganatha, Major, S/o Late Puttaiah, Thimmanahalli, Kandikere Hobli, C.N.Halli Taluk, Tumkur District. ….Respondents (By Smt.Savithramma, HCGP for R.1 and 2. Sri.S.B.Mukkannappa, Advocate for R.4) This Writ Petition is filed praying to quash the order passed by the respondent No.2 – Assistant Commissioner, Tiptur, Sub-Division Tiptur dated 27.06.2011 vide Annexure-A to the Writ Petition and etc.
This Writ Petition coming on for Orders this day, the Court made the following:
ORDER The learned counsel for the petitioner has filed amended petition and the same is taken on record.
2. Petitioner has challenged the order of the Assistant Commissioner dated 27.06.2011 as well as the order of the Deputy Commissioner in appeal confirming the order of the Assistant Commissioner.
3. The petitioner states that his father is the purchaser of the property measuring 4 acres in Sy.No.162/2017 (New No.269) situated at Thimmanahalli Village, Kandikere Hobli, C.N.Halli Taluk, Tumakuru District. The petitioner states that he has obtained rights subsequent to the death of his parents.
4. The petitioner states that the grant is said to have been made on 30.06.1953 to the grantee and the grantee himself had executed the sale deed with respect to extent of the land granted to him by a sale deed executed on 13.04.1967 and subsequently, the property was sold in favour of the petitioner’s father on 10.01.1969.
5. It is stated that the grandson of the grantee had initiated proceedings before the Assistant Commissioner on 22.04.2006 seeking for resumption and restoration after declaring that the sale deeds executed has been null and void in violation of law.
6. The facts relating to the grant and the sale transactions are not in dispute.
7. The Assistant Commissioner having entertained the application on behalf of the grantees has allowed the application by his order dated 27.06.2011 after holding that the sale transactions were illegal and had directed resumption and restoration of land in favour of the grantees family. The Assistant Commissioner has framed the questions which are points of consideration found at page-3 of the order and has answered the same. The Assistant Commissioner has recorded a finding that the land was in fact a granted land and the grant was made in favour of person belonging to ‘Adi Karnataka’ caste and that Caste Certificate has been furnished to evidence the caste of the grantee. The grant was made free of cost and there was violation of the condition for non- alienation in view of the stipulations in the rule applicable for the period of 13.12.1938 to 04.08.1953. It was observed that there was a condition for permanent non-alienation during the said period. Accordingly, taking note of the findings recorded, the Assistant Commissioner has allowed the petition. The said matter was taken up in appeal before the Deputy Commissioner, who affirms the findings of the Assistant Commissioner and refers to the notification bearing No.R 2828 LR 89-38-10 dated 18.12.1938 and observes that the said Rule imposed a condition of non-alienation forever. Accordingly, the Deputy Commissioner records a finding that there was a violation of condition imposed as per the prevailing Rule and upholds the findings of the Assistant Commissioner.
8. The petitioner has filed the present writ petition and has contended that the exercise of power by the Assistant Commissioner beyond a reasonable period of time is bad in law. In light of the judgment of the Apex Court in the case of Nekkanti Rama Lakshmi v. State of Karnataka and Another reported in 2018(1) Kar.L.R. 5(SC), wherein the Hon’ble Supreme Court has held that that action that is to be taken by the statutory Authorities must be within a reasonable period of time.
9. The petitioner has also relied on the judgment in the case of Vivek M. Hinduja and Others v. M. Ashwatha and Others reported in 2018(1) Kar.L.R.176(SC), and states that the power exercised by the authority beyond reasonable period of time is impermissible and in case of such belated claim, relief could not to have been given to the grantees and persons claiming under them.
10. Heard the learned counsel on both the sides.
11. It is noticed that the grant has been made on 30.06.1953 and is referred to in the order of the Deputy Commissioner.
12. The first sale was on 13.04.1967 and there was a subsequent sale on 10.01.1969, by virtue of which the father of the petitioner has obtained rights. If it is to be taken that the Rule applicable between the years 1938-1953 provided for permanent non-alienation and alienation has taken place on 13.04.1967, the State was empowered to take action for violation of stipulation in the rule as regards not alienation and that right had accrued as on 13.04.1967 itself.
13. The delay in initiating proceedings before the Assistant Commissioner of about 27 years after the Act has come into force can be said to be unreasonable period of delay. In light of the judgment of the Apex Court relied upon by the petitioner, it is clear that if the statutory remedy is sought to be invoked after an unreasonable period of time, the same ought not to have been entertained by the Assistant Commissioner. The statutory authorities cannot seek to exercise right beyond a reasonable period of time as it would infringe upon rights that have accrued upon persons by long period of in action by the authorities.
14. It is noticed that the law laid down by the Apex Court is reiteration of settled legal principle that the power should be exercised within a reasonable period of time.
15. The learned counsel for the respondents rely upon the judgment reported in the case of Narayanappa and Another V. The Special Deputy Commissioner and Others reported in ILR 2006 Kar 2506 to canvass the point that the question of unreasonable delay in invoking the provisions of Act cannot be a ground to disentitle consideration of the petition moved before the Assistant Commissioner.
16. However, in light of the judgment of the Apex Court referred to above, this Court is to accept the law laid down by the Apex Court. Accordingly, the writ petition is allowed and the order of the Assistant Commissioner dated 27.06.2011 and the order of the Deputy Commissioner dated 01.08.2014 are set-aside.
Sd/- JUDGE NBM/SJK