IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16th DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT APPEAL NO. 2737 OF 2019 (SC-ST) BETWEEN:
SHRI. MYLARAPPA S/O LATE MUNIYAPPA AGED ABOUT 55 YEARS OCC-AGRICULTURE R/O. KANNAMANGALA VILLAGE BIDARAHALLI HOBLI BENGALURU EAST.
(BY SHRI RAVICHANDRA JADHAV, ADVOCATE) AND:
1. SHRI S.MARTIN S/O MR. SANTHIAGU AGED ABOUT 58 YEARS OCC-BUSINESS, R/AT NO.416, 100 FEET ROAD 4TH BLOCK, KORAMANGALA BENGALURU – 560 034. (REPRESENTED BY P.A.O HOLDER MR. VEDAMUTHU).
2. MR. S.N.SUBHA REDDY S/O SHRI NANJUNDA REDDY AGED ABOUT 50 YEARS R/AT: NO. 18, MSR LAYOUT MARATHALLI POST BENGALURU – 560 037.
3. THE DEPUTY COMMISSIONER BENGALURU DISTRICT K.G.ROAD, BENGALURU – 570 001.
(BY SHRI VIKARAM HUILGOL, HCGP FOR R-3) ---
... APPELLANT ... RESPONDENTS THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED:13.12.2018 PASSED IN W.P No. 12848/2018 BY THE LEARNED SINGLE BENCH JUDGE, WHRE UNDER THE ORDER DATED: 06.03.2018 PASSED BY THE RESPONDENT NO.3, THE DEPUTY COMMISSIONER BENGALURU DISTRICT: BENGALURU IN SC/ST (A) 65/2012-13 VIDE ANNEXURE-“A” (IN W.P No. 12848/2018) AND ETC.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, KRISHNA KUMAR, J, DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the Judgment and Order dated 13th December 2018 passed by the learned single Judge in writ petition No.12848/2018 (SC-ST), whereby the order dated 06th March 2018 passed by the Deputy Commissioner, Bengaluru District, Bengaluru in SC/ST(A)65/2012-13 was set aside.
2. Heard the learned counsel for the appellant as well as learned High Court Government Pleader for the respondent No.3.
3. Perused the records.
4. The brief facts giving rise to the above appeal are as follows:
The Respondent No.1 claiming to be the grandson of one Hoodi Muniga initiated proceedings before the Assistant Commissioner, Bengaluru North Division, Bengaluru under Section 5 of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short ‘the Act’) seeking restoration of the land bearing Survey No.188 measuring 02 acres 03 guntas situated at Kannamangala village, Bidarahalli Hobli, Bengaluru East taluk. In the said proceedings initiated in the year 2010, the appellant herein was the petitioner while the Respondents 1 and 2 were arrayed as the Respondents 1 and 2, respectively. It was contended that the Respondent No.1 purchased the land in question from the Respondent No.2 vide registered sale deed dated 06th October 2006.
5. It was the specific contention of the appellant that the land in question was originally granted in favour of his grandfather Mr.Hoodi Muniga in the year 1935-36. That the said Hoodi Muniga as well as the appellant herein belong to Scheduled caste and that the land was alienated for the first time on 17th November 1950 under a registered sale deed executed by the said Hoodi Muniga in favour of one Venkata Ramaiah. Subsequently, the land was alienated several times between 1952 and 2006 till it was ultimately sold in favour of the Respondent No.1 on 16th October 2006 as stated supra. It was also contended that in view of the provisions contained in Sections 4 and 5 of the Act, all the said alienations including the sale in favour of the Respondent No.1 were hit by the provisions of the Act and consequently, the same were liable to be declared illegal and void and the land to be resumed and restored in favour of the appellant.
6. The Respondent No.1 contested the said proceedings initiated by the appellant under the Act. By order dated 25th June 2012, the Assistant Commissioner allowed the petition filed by the appellant and directed the land to be resumed and restored in favour of the appellant. Aggrieved by the said order, the Respondent No.1 preferred an appeal before the Deputy Commissioner who dismissed the same vide order dated 06th March 2018. Both the Assistant Commissioner and Deputy Commissioner came to the conclusion that the alienations in respect of the lands in question were hit by the provisions of the Act and consequently, the same was liable to be declared as null and void and restored in favour of the appellant.
7. Aggrieved by the said orders passed by the Assistant Commissioner and Deputy Commissioner, the respondent No.1 preferred a writ petition in W.P.No.12848/2018 (SC-ST). The appellant and Respondent No.2 contested the said petition. By the impugned order dated 13th December 2018, the learned single Judge allowed the writ petition relying upon the following recent judgments of the Hon’ble Apex Court:
i) CHHEDI LAL YADAV AND OTHERS vs. HARI KISHORE YADAV (D) THROUGH L.Rs AND OTHERS (2017 (6) SCALE 459);
ii) NEKKANTI RAMA LAKSHMI vs. STATE OF KARNATAKA AND ANOTHER (Civil Appeal No.1390/2009 dated 26th October 2017);
iii) VIVEK M.HINDUJA AND OTHERS vs.
M.ASHWATHA AND OTHERS (Civil Appeal No.2166/2009 dated 6th December 2017).
8. The learned single Judge held that in the light of the aforesaid Judgments of the Apex Court coupled with the undisputed fact that the first alienation in respect of the land in question had taken place on 17th November 1950 and the proceedings were initiated by the appellant in the year 2010, the proceedings were not initiated within a reasonable time and after a lapse of 31 years from 1st January 1979 when the Act came into force, the orders passed by the Assistant Commissioner and Deputy Commissioner were wholly illegal and accordingly, the same were set aside.
9. Aggrieved by the impugned judgment and order passed by the learned single Judge, the appellant is before this Court in the above appeal.
10. It is contended on behalf of the appellant that the learned single Judge committed an error in placing reliance upon the Judgments of the Apex Court referred to supra without dwelling upon/adverting to the merits of the case and that the said approach has resulted in miscarriage of justice. It is also contended that the learned single Judge has not rendered any finding as to how and who has caused the delay and as such, the impugned order is erroneous on this ground also. It is further contended that the doctrine of delay and latches apply only to discretionary orders and that having regard to the statutory provisions contained in Section 4 of the Act which render all alienations null and void, the question of applying the doctrine of delay and latches to the facts of the instant case does not arise. The appellant has also contended that in the light of the undisputed fact that the land in question was a granted land within the meaning of Section 3(b) of the Act coupled with the fact that the original grantee and his grandson, the appellant herein belonged to the depressed class, all alienations including the sale deed in favour of the Respondent No.1 were liable to be declared as null and void. Yet another contention that is urged on behalf of the appellant is that during the period from 1997 to 2017, the land in question was forfeited to the State Government on account of non- payment of land revenue and the land having vested with the State Government, all alienations during that period including the alienation in favour of the Respondent No.1 were null and void on this ground also.
11. At the outset, it is necessary to deal with the last contention of the appellant referred to above. It is not in dispute that the proceedings initiated on behalf of the appellant before the Assistant commissioner were under Section 5 of the Act. It is also not in dispute that the said proceedings were not initiated under the provisions of the Karnataka Land Revenue Act. This specific contention is urged for the first time before us with regard to the land having been forfeited to the State Government and consequent invalidation of all alienations had never been urged by the appellant in all the proceedings instituted prior to the instant appeal wherein it is urged for the first time. It is needless to state that in the present proceedings arising out of the Act, the question regarding payment of land revenue and applicability of the Karnataka Land Revenue Act are neither germane nor relevant for adjudication of the issues involved in the present appeal.
12. Under these circumstances, there is absolutely no merit in this contention urged on behalf of the appellant and the same is hereby rejected.
13. In this context, it is also relevant to state that along with the above appeal, the appellant has filed an application I.A.No.2/2019 for production of additional documents in support of the contention referred to supra. As stated earlier, the said contention being wholly misconceived and devoid of merit and having been rejected, I.A.No.2/2019 is accordingly, dismissed.
14. In so far as the other contentions urged on behalf of the appellant are concerned, the same are no longer res integra in the light of the authoritative pronouncements of the Apex Court referred to above. In this context, it would be relevant to reproduce Paragraphs 4 to 11 regarding the declaration of law by the Apex Court in Vivek Hinduja’s case supra, which reads as follows:
4. Arguments have been addressed before us at length on whether the present appellants had perfected their titles on the date of the coming into force of the Karnataka Act. We are not inclined to go into this question because the instant matters can be decided on an aspect settled by this Court in the case of Chhedi Lal Yadav v. Hari Kishore Yadav (D) Thr. Lrs.1, and Nekkanti Rama Lakshmi v. State of Karnataka2. In these two decisions, one of which arose under the Karnataka Act, this Court has held that the authorities entrusted with the power to annul proceedings purported to have been made by the original grantees, must exercise their powers to do so, whether on an application, or suo motu, within a reasonable time since no time is prescribed by law for taking such action. In the decided cases, action had been initiated after about 20 to 25 years of the coming into force of the Karnataka Act.
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 cases and he decided cases.
6. Relying on some observations in the case of Manchegowda v. State of Karnataka3 and Sunkara Rajayalakshmi v. State of Karnataka4, Shri Sunil Fernandes, learned counsel on the respondents' side submitted that the outer limit for initiating action should be 30 years.
7. We, however, find that the observations in those cases are not apposite and are made with reference to the period of prescription in respect of Government properties under the Limitation Act, 1963.
8. It was also submitted on behalf of the respondents that Section 45 of the Karnataka Act proprio vigore annuls a transfer made in contravention of itself. Therefore, it makes no difference if the proceedings are initiated even after 20 to 25 years.
9. We do not find it possible to accede to this submission. This Court in the case of Board of Trustees of Port of Kandla v. Hargovind Jasraj6 reiterated the necessity of an order of a competent Court or Tribunal before which the impugned order can be declared as null and void. The Court relied on the oft-quoted passage in Smith v. East Elloe Rural District Council7 which reads as under :
“…An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.’ (Smith Case, AC pp.769-70) (emphasis supplied) This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out(sic) repeatedly in the House of Lords and Privy council without distinction between patent and latent defects (Ed. Wade and Forsyth in Administrative Law, 7th Edn.1994.”
10. In the case of Pune Municipal Corporation v. State of Maharashtra8, this court reproduced the following observations with regard to the declaration of orders beyond the period of limitation as invalid:
“39. Setting aside the decree passed by all the courts and referring to several cases, this Court held that if the party aggrieved by invalidity of the order intends to approach the court for declaration that the order against him was inoperative, he must come before the court within the period prescribed by limitation. ‘If the statutory time of limitation expires, the Court cannot give the declaration sought for’.”
(emphasis supplied) 11. 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.
15. In the instant case, it is an undisputed fact that the grant in favour of Mr.Hoodi Muniga, grandfather of the appellant was made in the year 1935-36 and the first alienation by him was on 17th November 1950. It is needless to state that the Act came into force on 01st January 1979. It is also not in dispute that the appellant initiated proceedings only in the year 2010 after a long, unreasonable and inordinate delay, lapse and latches of 31 years after the Act came into force. Under these circumstances, the learned single Judge was fully justified in applying the law laid down by he Apex Court and setting aside the orders passed by the Assistant Commissioner and Deputy Commissioner on the ground that the proceedings initiated by the appellant were not maintainable and the same were liable to be dismissed.
16. Therefore, we are of the opinion that the appeal is devoid of merits and accordingly, the same is hereby dismissed. No costs.
Sd/- CHIEF JUSTICE Sd/- JUDGE bnv