IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD W.P.No.31835 OF 2016(SC-ST) BETWEEN:
1. Smt. Majoobi, W/o Mohammed Ali, Aged about 68 years.
2. Sri. Sadat Ali, S/o Mohammed Ali, Aged about 36 years.
3. Sabeeya, D/o Mohammed Ali, Aged about 34 years.
4. Sri. Nyamath Ali, S/o Mohammed Ali, Aged about 31 years.
All are residents of Tadasa Village, Badravathi Taluk, Shimogga District, Pin-577301. … Petitioners (By Sri. R.Gopal, Advocate) AND:
1. The Assistant Commissioner, Shimoga Sub-Division, Shimoga-577 201.
2. The Deputy Commissioner, Shimoga District, Shimoga-577 201.
3. Sri.Devla Naika, S/o Giddanaika, R/o Gudrukoppa Village, Shimoga Taluk-577 201. ... Respondents (By Smt. Savitharamma, HCGP for R1 & R2: Sri.P.N.Harish, Advocate for R3) This writ petition is filed under Articles 226 & 227 of the Constitution of India praying to quash the order vide Annexure-B dated: 16.03.2016 passed by 2nd respondent in case No.SC & ST2/2008-09 and etc.
This writ petition, coming on for Preliminary hearing in ‘B’ Group, this day, the Court, made the following:
ORDER This writ petition is directed against the order dated 16.03.2016 passed by the second respondent vide Annexure-B.
2. The brief facts of the case is that the land bearing Sy.No.31 measuring 2 acres 13 guntas situated at Gudrukoppa village in Shimoga Taluk was originally granted in favour of one Giddanaika on 11.03.1954. The original grantee has sold the said property in favour of one Khasim Sab, who is the father-in-
law of the first petitioner herein by a registered sale deed dated 06.11.1961.
3. The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, ‘the PTCL Act’) came into force on 01.01.1979. The legal representative of the original grantee filed an application on 28.11.1997 under Sections 4 and 5 of the PTCL Act for restoration of the land. The Assistant Commissioner, by order dated 27.07.2001 has allowed the application filed by the legal representative of the original grantee and restored the land in his favour. Being aggrieved by the same, the petitioners herein filed an appeal before the Deputy Commissioner. The Deputy Commissioner, by order dated 17.06.2005, remanded the matter back to the Assistant Commissioner for fresh consideration. After the matter was remanded back to the Assistant Commissioner, the Assistant Commissioner, by order dated 22.08.2008 vide Annexure-A has rejected the application filed by the legal representative of the original grantee. Being aggrieved by the same, the legal representative of the original grantee has filed an appeal before the Deputy Commissioner. The Deputy Commissioner by order dated 16.03.2016 vide Annexure-B has allowed the appeal filed by the legal representative of the grantee and restored the land in his favour. Being aggrieved by the same, the petitioners have filed this writ petition.
4. Sri R.Gopal, learned counsel appearing for the petitioners submitted that the land in dispute was originally granted in favour of Giddanaika on 11.03.1954. The said Giddanaika sold the land in favour of one Kashim Sab who is the father-in-law of the first petitioner on 06.11.1961. The PTCL Act came into force on 01.01.1979 and the application for restoration of the lands has been filed on 28.11.1997 and there is a delay of more than 18 years in invoking the provisions of Sections 4 and 5 of the PTCL Act. In support of his case, he has relied on the judgment of the Hon’ble Supreme Court in the case of NEKKANTI RAMA LAKSHMI vs. STATE OF KARNATAKA AND ANOTHER reported in 2017 SCC Online SC 1862. Hence, he sought for allowing the writ petition.
5. Per contra, Sri P.N.Harish, learned counsel appearing for the third respondent grantee has submitted that the land in dispute was granted in favour of Giddanaika on 11.03.1954 with a condition that it should not be alienated for a period of 20 years. Since the property was sold on 06.11.1961 by violating the condition, the authority has rightly restored the land in favour of the legal representative of the original grantee. Secondly, he has contended that for the first time the petitioner has raised the question of limitation and that there is no opportunity for the grantee to explain the delay in approaching the competent authority. Hence, he sought for dismissal of the writ petition.
6. Smt.Savithramma, learned Government Pleader appearing for the respondent Nos. 1 and 2 submitted that the land has been granted in the year 1954 with a condition not to alienate for a period of 20 years. But the same has been sold on 06.11.1961 violating the condition. Hence, the authority has rightly exercised the power under Sections 4 and 5 of the PTCL Act and restored the land in favour of the legal representative of the original grantee.
7. Heard learned counsel for the parties and perused the writ papers.
8. It is not in dispute that the land measuring 2 acres 13 guntas in Sy.No.31 situated at Gudrukoppa village, Shimoga Taluk was granted in favour of Giddanaika on 11.03.1954. The said Giddanaika sold the land in favour of Kashim Sab by a registered sale deed on 06.11.1961. The PTCL Act came into force on 01.01.1979. The legal representative of the original grantee has filed an application under Sections 4 and 5 of the PTCL Act on 28.11.1997. There is an unreasonable delay of more than 18 years in filing the application for restoration of the land. The Hon’ble Supreme Court in the case of NEKKANTI RAMA LAKSHMI (supra) has held 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 2River 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.”
In the aforesaid case, it is held that to invoke the provisions of Section 4 they have to approach within a reasonable time. In the case on hand, there is a delay of more than 18 years in invoking the provisions of PTCL Act. In view of the law laid down by the Hon’ble Supreme Court in the aforesaid case, the impugned order passed by the Deputy Commissioner is unsustainable.
9. The second contention of the third respondent is that the legal representative of the original grantee was not aware about the Act and there is no opportunity given to explain the delay in filing the application for restoration. This issue has been considered by a Division Bench of this Court in W.A.No.846/2019 disposed of on 19th June 2019. The relevant portion is extracted hereinbelow:
“ 5. The law on the aspect is very clear. There is no specific limitation prescribed in Section 5 of the PTCL Act. The application has to be filed within a reasonable time. By no stretch of imagination, the application made by the appellants, after a lapse of nearly 32 years from the date on which PTCL Act came into force, can be said to be filed within a reasonable time.
6. As law of limitation is not applicable, there is no question of allowing the filing of the application for condonation of delay. The learned Single Judge has found that there is no explanation for such a long delay of 32 years from the date on which the PTCL Act came into force. There is no reason to find fault with the findings recorded by the learned Single Judge while exercising equitable and discretionary powers under Article 226 of the Constitution of India.”
10. In view of the above, the contentions raised by the third respondent is unsustainable. Accordingly, writ petition is allowed. The impugned order passed by the Deputy Commissioner dated 16.03.2016 vide Annexure-B is quashed. The other contentions raised by the petitioner would not arise for consideration.
Cm/-
Sd/- JUDGE