IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION No.5819 of 2013 (SC/ST) BETWEEN SHRI M. SHIVAKUMAR S/O. LATE M. MAHADEVAIAH, AGED ABOUT 43 YEARS, NO.109, 4TH MAIN, HVR LAYOUT, MAGADI MAIN ROAD, BANGALORE – 560 079.
(BY SRI SHIVAKUMAR H., ADVOCATE FOR SRI PRAKASH T. HEBBAR, ADVOCATE) AND 1. THE STATE OF KARNATAKA REVENUE DEPARTMENT, 5TH FLOOR, M.S. BUILDINGS, DR. AMBEDKAR ROAD, BANGALORE – 560 001, REP. BY ITS SECRETARY.
2. THE DEPUTY COMMISSIONER BANGALORE RURAL DISTRICT, II FLOOR, PODIUM BLOCK, V.V. TOWERS, DR. AMBEDKAR ROAD, BANGALORE – 560 001.
...PETITIONER 3. THE ASSISTANT COMMISSIONER DODDABALLAPUR SUB-DIVISION, PODIUM BLOCK, V.V. TOWERS, BANGALORE.
4. SMT. SARASWATHAMMA DAUGHTER OF LATE ANJINAPPA, MAJOR, NO.174/9, 3RD CROSS, 4TH MAIN, MUNESHWARA BLOCK, MAHALAKSHMIPURAM, BANGALORE – 560 086.
5. SHRI V. GOVINDARAJU S/O SHRI VENKATARAMANAPPA, MAJOR, CARE OF SHRI MUNIRAJU, BEHIND MSV CABLES, MUNESHWARA BLOCK, AMRUTHAHALLI, YELAHANKA ROAD, BANGALORE – 560 092.
6. SHRI GOPALAKRISHNA MAJOR, 7. SHRI SRINIVASA MAJOR, 8. SHRI NARAYANAPPA MAJOR, 9. SHRI CHANDRASHEKAR MAJOR, 10. SHRI KRISHNENDRA MAJOR, 11. SHRI RAVI MAJOR, 12. SHRI RAJA MAJOR, 13. SHRI SURESHA MAJOR, 14. SMT. BHAGYAMMA MAJOR, RESPONDENTS NO.6 TO 13 ARE THE CHILDREN AND 14 IS THE WIFE, RESPECTIVELY OF LATE K. NARAYANAPPA, AND ALL OF THEM ARE RESIDING AT KANNAMANGALA VILLAGE, KASABA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT.
15. SHRI K. ANJANAPPA S/O. LATE KORAMARA RAMAIAH @ RAMADAS, UDAYA VILAS, NO.2135, S. RAMESH ROAD, PRASHANTHNAGAR, T. DASARAHALLI, BANGALORE.
(BY SMT. SAVITHRAMMA, HCGP FOR R1 – R3; SMT. MADHUSREE, ADVOCATE FOR SRI M.T. RANGASWAMY, ADVOCATE FOR R4;
… RESPONDENTS SRI C. RAJANNA & SRI S.J. KUMAR, ADVOCATES FOR R5; R7, R8, R9, R10, R11, R12, R13 AND R14 ARE SERVED AND UNREPRESENTED;
NOTICE TO R6 AND R15 IS HELD SUFFICIENT.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 04.09.2011 PASSED BY THE R2-DEPUTY COMMISSIONER, VIDE ANNEXURE-A AND DIRECT THE R3 ASSISTANT COMMISSIONER TO RESTORE THE REVENUE ENTRIES IN FAVOUR OF THE PETITIONER IN RESPECT OF THE SCH PROPERTY.
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-purchaser of the granted land being aggrieved by the order passed by the Deputy Commissioner-respondent No.2, Bengaluru Rural District-respondent No.2 having allowed the appeal filed by the grantees by setting aside the order of dismissal passed by respondent No.3 under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (hereinafter referred to as ‘PTCL Act’ for short) dated 04.09.2011.
2. Heard the arguments of learned counsel for the petitioner as well as respondent and learned HCGP.
3. The rank of the parties before the Deputy Commissioner is retained for the sake of convenience.
4. The land in survey No.73/1 (New Sy.No.73/1H) measuring 2 acres situated at Kannamangala village, Devenahalli Taluk was granted by the Government to Koramara Ramaiah alias Ramadas in the year 1947 i.e., on 27.01.1947. Subsequently, the said grantee said to have sold the granted land to K.Narayanappa under sale deed dated 09.06.1980. Subsequent to the commencement of the PTCL Act, the legal representatives of the grantee filed the application under Section 5 of the PTCL Act before respondent No.3-Assistant Commissioner for resumption and restoration of the granted land contending that the sale deed was effected in contravention of the provision contained under Section 4(2) of the PTCL Act. After considering the evidence on record, the Assistant Commissioner dismissed the application on 05.02.2007 on the ground of delay and adverse possession. Being aggrieved by the order of dismissal, LRs of the grantee filed an appeal before the Deputy Commissioner-respondent No.2 under Section 5(A) of PTCL Act. Meanwhile, the purchaser sold the property to the present petitioner on 29.03.2007 and the present petitioner also impleaded himself as respondent No.7 before the Deputy Commissioner after considering the evidence and documents on record, respondent No.2 allowed the appeal filed by the legal representatives of the grantee and restored the lands to the legal representatives by setting aside the order of dismissal passed by respondent No.3. The same is challenged by the subsequent purchaser M.Shivakumar-petitioner in this Writ Petition.
5. The learned counsel appearing for the petitioner has strenuously contended that the property has been sold by the original grantee on 09.06.1980. Though, the sale was after the commencement of the Act, the restoration application filed by the legal representatives of the grantee is only in the year 2005 after 25 years, there is delay and latches on the part of the legal representatives of the grantee in filing the application. Hence, the Assistant Commissioner has rightly dismissed the application on 05.02.2007. After rejection of the application, this petitioner purchased the property, the land in question on 29.03.2007. However, the Deputy Commissioner without assigning any reason in respect of delay and latches has restored the land to the grantees by setting aside the sale deed which is not correct as there is delay for 25 years by the LRs of the grantee is approaching the authorities seeking restoration of land, which is not sustainable.
6. In support of his contention, the learned counsel relied upon the judgment of the Apex Court in the case of Nekkanti Rama Lakshmi vs. State of Karnataka and another [2018(1) Kar.L.R 5 (SC)]; and also the judgment of Division Bench of this Court in W.A.No.6698-6699/2017 (SC/ST) dated 09.08.2018 and prayed for allowing the petition and set aside the order of restoration passed by respondent No.2.
7. Per contra, learned counsel appearing for respondent No.4, the LRs of the grantee has contended that the Deputy Commissioner after considering the evidence on record has rightly set aside the sale deed effected in the name of Narayanappa which was on 19.06.1980 and subsequent to the commencement of PTCL Act from the year 1979 as there is clear contravention of Section 4(2) of PTCL Act and after commencement of the Act, permission is mandatory. Therefore, the learned counsel has supported the orders passed by the Deputy Commissioner and prayed for dismissing the petition.
8. The learned HCGP also supports the order passed by the Deputy Commissioner contending that there is a contravention of Land Grant Rules and violation of 4(2) of the Act in selling the land without permission of the Government, therefore, the sale deed is void. Hence, prayed for dismissing the petition.
9. Upon hearing and on perusal of the records, the only point arises for my consideration is whether impugned order passed by the Deputy Commissioner vide Annexure-A is not sustainable in view of the delay of 25 years in filing the restoration application by the LRs of the grantee.
10. On perusal of the record, it is an admitted fact that the land was granted under Section 3(i)(b) of the PTCL Act. The land has been granted to Koramara Ramaiah in the year 1947. Admittedly, the first sale deed was effected in 09.06.1980 after commencement of the PTCL Act with effect from 01.01.1979. Admittedly, the restoration application filed by the LRs of the grantee in the year 2005 after 25 years of the sale deed executed and 27 years after the commencement of the Act. In this regard, the learned counsel for the petitioner relied upon the judgment of the Hon’ble Apex Court in the case of Nekkanti Rama Lakshmi (supra) wherein the Hon’ble Apex Court has held at para 8 of the judgment as under:
“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.”
11. Based upon the judgment of the Hon’ble Apex Court, the Division Bench of this Court in Writ Petition No.6698-6699/2017 in the case of Narayanappa vs. The Deputy Commissioner and others, dated 09.08.2018 has held that the actions were initiated by the appellants nearly 22 years after transfer of the land to the contesting respondents and upheld the order passed by the Learned Single Judge of this Court. The Division Bench has also relied upon the judgment of the Hon’ble Apex Court in the case of Vivek M.Hinduja and others vs. M.Ashwatha and Others and also Nekkanti Rama Lakshmi’s case (supra) and upheld the order of Single Judge for having setting aside the order of restoration. Admittedly, the application filed by the grantees in the year 2005, after the lapse of 25 years after the sale effected in 1980, another judgment of the Division Bench of this Court in Writ Appeal No.372/2019(SCST) and connected matters in the case of Munimada @ Munimadappa vs. The Special Deputy Commissioner and others dated 03.07.2019 have taken similar view that the in-ordinate delay in approaching the Authorities for taking action under Section 5 of the PTCL Act and the order of restoration, if any, cannot be sustainable due to delay and latches.
12. There is no reason assigned by the grantees for having filed the application after the delay of 25 years, therefore, on the ground of delay and latches as held by the Hon’ble Apex Court, the order passed by the Deputy Commissioner vide Annexure-A is liable to be set aside. Accordingly, I pass the following order:
i) Writ Petition is allowed.
ii) The order of the Deputy Commissioner as per Annexure-A dated 04.09.2011 is hereby set aside.
Sd/- JUDGE GBB