IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 26TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL NO.2086 OF 2016 (SC/ST) BETWEEN:
SMT. NINGAMMA WIFE OF RUDRAPPA AGED ABOUT 55 YEARS RESIDENT OF DODDAULLARTI VILLAGE, CHALLAKERE TALUK CHITRADURGA DISTRICT-577522.
... APPELLANT (BY SRI.SIDDAPPA B M, ADVOCATE) AND:
1. THE DEPUTY COMMISSIONER CHITRADUGA DISTRICT CHITRADURGA -577501.
2. THE ASSISTANT COMMISSIONER CHITRADURGA SUB-DIVISION CHITRADURGA-577501.
3. SMT. RUDRAMMA WIFE OF SANNALINGAREDDY AGED ABOUT 51 YEARS RESIDING AT CHENNAGANAHALLI CHALLAKERE TALUK CHITRADURGA DISTRICT-577522.
(BY SRI.LAXMINARAYANA, AGA FOR RESPONDENT Nos.1 AND 2 SRI. N S BHAT, ADVOCATE FOR RESPONDENT No.3-ABSENT) ... RESPONDENTS THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No.18147/2010 DATED 28/04/2016.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT There is a delay of 43 days in filing the appeal. However, the learned counsel for the appellant has addressed arguments on merits.
2. Aggrieved by the impugned order dated 28.04.2016 passed by the learned Single Judge in W.P. No.18147 of 2010, by the which the petition was allowed, the 3rd respondent is in appeal.
3. The petitioner filed writ petition under Article 226 and 227 of the Constitution of India assailing the order dated 03.02.2010 passed by the 1st respondent – Deputy Commissioner and the order dated 27.02.2006 passed by the 2nd respondent – Assistant Commissioner, Chitradurga. The petitioner states that land bearing Survey No.31 measuring 10 acres of Valase Village, Challakere Taluk Chitradurga District, was granted to one Mallappa under Grant order dated 20.03.1953 for an upset price of Rs.75/- One Reddappa purchased the schedule property i.e., 5 acres 23 guntas in Sy.No.31 on 10.02.1959 under a registered sale deed and he was put in possession. The remaining extent was purchased by one Sri Revappa under a registered sale deed dated 03.12.1962. On purchase of the schedule land, name of Reddappa was mutated in the revenue records and he developed the land and made fit for cultivation. In a family partition, the property in question fell to the share of the petitioner - Smt. Rudramma and R. Thimma Reddy. The name of the petitioner is mutated in the revenue records. Further, it is stated that the 3rd respondent claiming to be the legal heir of the original grantee - Mallappa initiated action under the Karnataka Schedule Castes and Schedule Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (for short ‘the Act’) before the 2nd respondent – Assistant Commissioner. On appearing before the 2nd respondent, the petitioner contended that the original grantee had no issues and moreover the grant made to Sri Mallappa was for an upset price on 20.03.1953 and as such, there was no prohibition for sale. The 2nd respondent by order dated 27.02.2006 allowed the application of the 3rd respondent, declared the sale as null and void and further ordered to restore the possession of the land in favour of the legal heirs of 3rd respondent. The appeal filed before the Deputy Commissioner is also dismissed. Hence, the petitioner approached this Court challenging both the orders of the Assistant Commissioner and the Deputy Commissioner. The learned Single Judge after hearing both the sides and on perusal of the records produced by the learned Government Advocate held that the grant in favour of Mallappa is not a free grant and relying upon the decision of the Hon’ble Supreme Court held that the provisions of the Act cannot be made applicable for setting aside the sale. Aggrieved by the said order of the learned Single Judge the 3rd respondent is in appeal.
4. Heard the learned counsel for the appellant and learned Additional Government Advocate for respondent Nos.1 and 2. Perused the appeal papers.
5. The learned counsel for the appellant submits that the learned Single Judge committed an error in setting aside the order passed by the 1st and 2nd respondents, who had recorded finding of fact. He further submits that the decision relied upon to allow the writ petition would not be applicable to the facts of the present case. It is further contended that as per rules sale was prohibited and as such sale made on 10.02.1959 within 10 years from the date of grant, is bad in law.
6. On perusal of the writ appeal papers and on hearing learned counsels for the parties, we are of the view, that the learned Single Judge has not committed any error nor there is any perversity to interfere with the impugned order. Admittedly, Mallappa was granted land in Sy.No.31/3 measuring 10 acres situated at Valase Village Challakere Taluk on 20.03.1953 for an upset price of Rs.75/-. First sale has taken place on 10.02.1959 and second sale has taken place in favour of the petitioner herein under registered sale deed dated 03.12.1962. The learned Single Judge on perusal of the records was of the view, that the land is granted to Mallappa - original grantee for an upset price and relying upon the decision of the Hon’ble Supreme Court in B.K. MUNIRAJU Vs. STATE OF KARNATAKA reported in AIR 2008 SC 1438 held that Section 3(1)(b) of the Act cannot be extended to set aside the sale deed executed by the original grantee. It is settled law that if the land is granted for an upset price the non-alienation clause would not be applicable and as such the learned Single Judge was right in holding that the provisions of the act would not be applicable to set aside the sale in favour of the petitioner, in the facts and circumstances of the case.
7. The grant in favour of Mallappa is on 20.03.1953 and the sale in respect of the petition schedule land has taken place on 03.12.1962. The Act has come into effect in the year 1978. The 3rd respondent - legal representative of original grantee Mallappa initiated action invoking the provisions of the Act on 31.05.2002. The Assistant Commissioner by order dated 27.02.2006 declared the sale deed of the year 1962 as null and void. It could be seen from the above sequence of dates action under the provisions of the Act is initiated nearly 24 years after coming into force of the Act and 40 years from the date of execution of the sale deed. There is an inordinate delay in initiating the proceedings under the provisions of the Act seeking restoration of the land in question. Any action is to be initiated within a reasonable time. Wherever the authorities are empowered to take action and no prescribed time limit is stated, the authorities shall initiate action within a reasonable time. The Hon'ble Supreme Court in MR.VIVEK M HINDUJA AND OTHERS v/s MR.M.ASHWATHA AND OTHERS in Civil Appeal No.2166 of 2009 decided on 06.12.2017 held at paragraphs 3, 4 and 5 as under:
“3. The original grantees in these cases, who were members of the Scheduled Caste Community, were granted the lands by a common grant sometime in the year 1946-1947. By that grant each of the grantees was given two acres of land. The successors of the grantees or the grantees themselves transferred the lands to certain individuals sometime in the year 1967. These transferees further transferred the lands after 8/10 years to different persons. The present Appellants are purchasers from the land transferees.
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 and Ors. V. Hari Kishore Yadav (dead) through L.Rs and Ors. MANU/SC/0781/2017 : 2017 (6) Scale 459 and Nekkanti Rama Lakshmi v. State of Karnataka and Anr. MANU/SC/1814/2017 : 2018 (6) Kar. L.J. 792 (SC), C.A.No.1390 of 2009, dated 26-10-2017. 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 the decided cases.”
8. Viewed from any angle, the appellant has not made out any ground to interfere with the impugned order dated 28.04.2016 passed by the learned Single Judge in Writ Petition No.18147 of 2010. The writ appeal is dismissed as devoid of merit and also on delay.
Sd/- Sd/-
JUDGE JUDGE NG* CT:bms