IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN WRIT PETITION Nos.6742-6743 of 2012 (SC/ST) BETWEEN 1. SMT. MALLAMMA, W/O. LATE LAKSHMANAPPA, AGED ABOUT 55 YEARS, 2. CHANDRAPPA, S/O LATE THIMMAPPA, AGED ABOUT 50 YEARS, BOTH ARE RESIDENTS OF SUNIGERE VILLAGE, CHANNAGIRI TALUK, DAVANGERE DISTRICT.
(BY SRI H.K. RAVI, ADVOCATE FOR SRI H. KANTHARAJA, ADVOCATE) AND 1. THE DEPUTY COMMISSIONER, DAVANGERE DISTRICT, DAVANGERE.
2. THE ASSISTANT COMMISSIONER, DAVANGERE SUB DIVISION, DAVANGERE.
3. SMT. JAYAMMA, W/O. BASAPPA, AGE: MAJOR.
...PETITIONERS 4. SHRI. ANJINAPPA, S/O SANNAHANUMAPPA, AGE: MAJOR.
RESPONDENT Nos.3 AND 4 ARE RESIDENTS OF HALLADAHALLI VILLAGE, HOSADURGA TALUK, CHITRADURGA DISTRICT.
(BY SMT. SAVITHRAMMA, HCGP for R1 & R2; SRI S. VIJAYA, ADVOCATE for R3) … RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE IMPUGNED ORDERS DATED 19.09.2011 IN PTCL/CR/29/2010-2011 PASSED BY REPONDENT No.1 VIDE ANNEXURE-D AND THE ORDER DATED 29.11.2010 IN CASE No.PTCL/CR:3/2009-2010 PASSED BY RESPONDENT No.2 VIDE ANNEXURE-B BY ISSUING A WRIT OF CERTIORARI AS ILLEGAL AND ETC.
THESE WRIT PETITIONS COMING ON FOR FURTHER HEARING, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER The petitioners have filed these petitions challenging the order dated 19.09.2011 passed in PTCL/CR/29/10-11 by the Deputy Commissioner, Davanagere District, Davanagere and the order dated 29.11.2010 passed in PTCL/CR:3/09-10 by the Assistant Commissioner, Davanagere.
2. Heard learned counsel for the petitioners and Smt.Savithramma, learned High Court Government Pleader for respondent Nos.1 and 2.
Learned counsel for respondent Nos.3 and 4 remained absent and not argued the matter.
3. The case of the petitioners is that the land in Sy.No.57/1, measuring 3 acres of land situated at Dodraghatta Village, Channagiri Taluk, Davanagere District, has been granted to Sanna Hanumappa, the father of respondent No.4 and father-in-law of respondent No.3 on 22.12.1962. Subsequently, the children of Sanna Hanumappa, the original grantee, namely Basappa and respondent No.4-Anjinappa sold the said property to the petitioners under a registered sale deed dated 27.10.1990. Respondent Nos.3 and 4 filed an application before the Assistant Commissioner under the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1979 (for short ‘PTCL Act’) for resumption and restoration of the said land on the ground that the sale deed executed by them is hit by the provisions of the PTCL Act as there was no permission obtained prior to selling of the property in view of the commencement of the PTCL Act with effect from 01.01.1979. The Assistant Commissioner after issuing notice to the present petitioners and hearing the parties, allowed the application filed by respondent Nos.3 and 4 and the order of resumption has been passed on 29.11.2010 and restored the land to the children of the original grantee, Sanna Hanumappa. Being aggrieved by the said order, the petitioners filed an appeal before the Deputy Commissioner under Section 5(A) of the PTCL Act. The Deputy Commissioner vide order dated 19.09.2011 dismissed the petition on the ground of non-prosecution as both the petitioners and respondents remained absent and not addressed their arguments. Assailing the orders of both the Court below, the petitioners i.e. the purchasers are before this Court.
4. Learned counsel for the petitioners contended that the land in question was granted on 22.12.1962 in favour of Sanna Hanumappa, the father of respondent No.4 and father-in-law of respondent No.3 and as per the grant order, the upset price has been paid by the grantee. Therefore, the condition for seeking permission to alienate the land in question does not apply. Learned counsel for the petitioners alternatively argued that even if the sale is hit by Section 4(2) of the PTCL Act, there is delay and laches on the part of respondent Nos.3 and 4 in filing the restoration application and for almost 20 years after the alleged alienation, they have filed the application. The Assistant Commissioner ought to have dismissed the application on the ground of delay, but committed error in allowing the application and restoring the land in question in favour of the children of Sanna Hanumappa, the original grantee.
5. Learned counsel for the petitioners, in support of the arguments, relied upon the judgments of the Hon’ble Apex Court in the case of Nekkanti Rama Lakshmi vs. State of Karnataka and another [2018(1) Kar.L.R 5 (SC)]; and Chhedi Lal Yadav and others vs. Hari Kishore Yadav (D) Thr. LRs and others [2018 (1) Kar.L.R 1(SC) as also the judgment of a co-ordinate Bench of this Court in the case of N.B.Mallappa Basappa vs. Deputy Commissioner, Chikkamagalur District and others [2018 (2) AKR 462] and in the case of A. Narasimhamurthy vs. State of Karnataka and others [ILR 2000 KAR 4761].
6. Per contra, Smt. Savithramma, learned High Court Government Pleader appearing for respondent Nos.1 and 2 contended that though the land in question has been granted by the government on obtaining upset price, but does not bar the permission required under the PTCL Act for alienation of the land in question since the same has been sold after the commencement of the PTCL Act with effect from 01.01.1979. The land which was granted under Section 3(1)(b) of the PTCL Act is a granted land in favour of the persons belonging to Scheduled Castes and Scheduled Tribes under the PTCL Act. There is a clear prohibition under Section 4(2) of the PTCL Act for alienating the property even after completion of 15 years. Therefore, she contended that the order of the Assistant Commissioner cannot be set aside on that ground. She further contended that in a recent judgment in the case of Satyan vs. Deputy Commissioner and others in Civil Appeal Nos.2976-2983/2019, dated 30.04.2019, the Hon’ble Apex Court has held that permission is required even after completion of 15 years for the land granted to the beneficiary, as per Section 4(2) of the PTCL Act.
7. Learned counsel for respondent Nos.3 and 4, the beneficiaries remained absent and not addressed any argument.
8. Upon hearing learned counsel for the petitioners and learned High Court Government Pleader for respondent Nos.1 and 2 and on perusal of the record, it is clear that it is an admitted fact that the land in question was granted to Sanna Hanumappa vide order dated 22.12.1962 and upset price has been obtained by the government while granting the land. However, in view of the judgments passed by this Court in number of cases as well as the Hon’ble Apex Court in Satyan’s case (supra), the lands granted to the persons belonging to Scheduled Castes or Scheduled Tribes under Section 3(1)(b) of the PTCL Act or under any other law in force attracts the non-alienation clause. Further, it is noted that the sale in question in this case took place on 27.10.1990 after the commencement of the PTCL Act with effect from 01.01.1979. In view of the decision of the Hon’ble Apex Court in Satyan’s case (supra), even if 15 years have elapsed from the date of grant of the land, Section 4(2) of the PTCL Act bars alienation of the granted land without permission of the government. Therefore, the contention raised by learned counsel for the petitioners that the bar under Section 4(2) of the PTCL Act does not apply to the case cannot be acceptable. However, in the cases of Chhedi Lal Yadav and Nekkanti Rama Lakshmi (supra), in which cases, there was an inordinate delay in filing the restoration application before the Assistant Commissioner, the Hon’ble Apex Court has held that it was unreasonable to do so and the order of the Assistant Commissioner is not sustainable under the law. Based upon the said judgments of the Hon’ble Apex Court, a co-ordinate Bench of this Court in the case N.B.Mallappa Basappa (supra) set aside the application for resumption which was allowed after lapse of 27 years. The Hon’ble Apex Court in the case of Vivek M. Hinduja and others vs. M.Ashwantha and others [2018 (1) Kar.L.R. 176(SC) at paragraphs 5 and 10 has held as follows;
“5. In the present cases, it is undisputed that the action had been initiated after almost 20 years from the coming into force of the Karnataka Act. In principle, we do not see any reason why the delay in the present cases should be considered to be reasonable. There is no material difference between the period of delay in the present case and he decided cases.”
“10. We are in respectful agreement with the aforesaid observations. It is, however, necessary to add that where limitation is not prescribed, the party ought to approach the competent Court or authority within reasonable time, beyond which no relief can be granted. As decided earlier, this principle would apply even to suo motu actions.”
In all these cases, the Hon’ble Apex Court has set aside the order of resumption and restoration passed by the Assistant Commissioner and the Deputy Commissioner in view of the delay in filing the application for restoration. In the present case, there is 20 years of delay and there is no explanation from respondent Nos.3 and 4 for the delay. Therefore, the order under challenge is not sustainable in law due to the delay in filing the application. Learned Government Pleader requested to remand the matter back to the Deputy Commissioner for consideration, but looking to the facts and circumstances and the delay in filing the application by respondent Nos.3 and 4, the impugned order passed by the Courts below are not sustainable in law in view of the judgment of the Hon’ble Apex Court. Therefore, the petitions deserve to be allowed.
9. Accordingly, the writ petitions are allowed. The order dated 19.09.2011 passed in PTCL/CR/29/10-11 by the Deputy Commissioner, Davanagere District, Davanagere and the order dated 29.11.2010 passed in PTCL/CR:3/09-10 by the Assistant Commissioner, Davanagere, are set aside.
In view of disposal of main petitions, I.A.No.1/2014 stands disposed of.
Sd/- JUDGE mv