IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9th DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.NATARAJAN WRIT PETITION No.2279/2012 C/W WRIT PETITION No.11481/2012 (SC/ST) IN WP No.2279/2012: BETWEEN:
R. BALASHANKAR REDDY S/O LATE K.MALLA REDDY, AGED ABOUT 68 YEARS, R/O NO.6, NAGARESHWARA NAGANAHALLI, KOTHNUR POST, BENGALURU – 560 077.
… PETITIONER (BY SRI JAYAKUMAR S.PATIL, SR. ADV., FOR SRI RAGHAVENDRA S.V., ADV.) AND:
1. THE SPECIAL DEPUTY COMMISSIONER BANGALORE DISTRICT, BANGALORE.
2. THE ASSISTANT COMMISSIONER BANGALORE SUB-DIVISION, BANGALORE.
3. THE TAHSILDAR BANGALORE EAST TALUK, BANGALORE.
4. SMT. CHOWDAMMA W/O MOTAPPA, SINCE DEAD BY LRs 4(a). MANIRATHNAMMA D/O. MOTAPPA, AGED: MAJOR, 4(b). BYRAMMA D/O. MOTAPPA, AGED ABOUT 52 YEARS, RESPONDENTS NO.4(a) TO 4(b) ARE RESIDING AT KANNUR VILLAGE, BIDARAHALLI HOBLI, BANGALORE EAST TALUK.
5. SMT. GANGAMMA W/O. LATE BODAPPA, MAJOR, 6. SRI NARAYANASWAMY S/O LATE BODAPPA, MAJOR, RESPONDENTS NO.5 TO 6 ARE RESIDENTS OF KANNUR VILLAGE, BIDARAHALLI HOBLI, BANGALORE EASE TALUK, REP. BY THEIR GPA HOLDER, SRI B. BYRAPPA, S/O LATE BODAPPA, R/AT. KANNUR VILLAGE, BIDARAHALLI HOBLI, BANGALORE EAST TALUK.
7. SRI D. CHANNAKESHWAIAH S/O DODDA MUNITHAYAPPA, AGED ABOUT 56 YEARS, R/O. YERRAPPANAHALLI VILLAGE, BIDARAHALLI HOBLI, BANGALORE SOUTH TALUK.
8. SRI JAMPALA RAVINDRA BABU S/O LATE JAMPALA NARASIMHA RAO, AGED ABOUT 65 YEARS, R/O. NO.52, SENA VIHAR, KAMMANAHALLI MAIN ROAD, KALYANAGAR, BANGALORE – 560 043.
… RESPONDENTS (BY SMT. SAVITHRAMMA, HCGP FOR R1 – R3; SRI J.C.KUMAR, ADV., FOR R5-R6 & R4(b);
R7, R8, R4(a) ARE SERVED & UNREPRESENTED.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RELEVANT RECORDS WHICH ULTIMATELY RESULTED IN ISSUING OF THE IMPUGNED ORDER DATED 10.10.2011 PASSED BY THE R1 IN CASE NO.SC/ST(AA) 114/2005-2006 VIDE ANNEXURE-A AND QUASH THE IMPUGNED ORDER DATED 10.10.2011 PASSED BY THE R1 IN CASE NO.SC/ST(AA) 114/2005-2006 VIDE ANNEXURE-A.
IN WP NO.11481/2012:
BETWEEN:
1. SMT. SHASHIKALA W/O. SHRI ASHOK, AGED ABOUT 49 YEARS, R/AT. NO.179/2, KANNUR VILLAGE, BIDARAHALLI HOBLI, BANGALORE EAST TALUK.
2. SHRI. KUMAR GURU S/O LOKANATH, AGED ABOUT 44 YEARS, R/AT. NO.179/2/C, KANNUR VILLAGE, BIDARAHALLI HOBLI, BANGALORE EAST TALUK.
3. SHRI S. ASHOK S/O SRIDHAR NAIDU, AGED ABOUT 50 YEARS, R/AT NO.179/2, KANNUR VILLAGE, BIDARAHALLI HOBLI, BANGALORE EAST TALUK.
… PETITIONERS (BY SRI JAYAKUMAR S.PATIL, SR. ADV., FOR SRI A.V.SRIHARI, ADV.) AND:
1. THE STATE OF KARNATAKA VIDHANA SOUDHA, VIDHANA VEEDHI, BANGALORE – 560 001, REP. BY ITS CHIEF SECRETARY.
2. THE SPECIAL DEPUTY COMMISSIONER BANGALORE DISTRICT, BANGALORE.
3. THE ASSISTANT COMMISSIONER BANGALORE NORTH SUB-DIVISION, BANGALORE.
4. THE TAHSILDAR BANGALORE EAST TALUK, BANGALORE.
5. SMT. CHOWDAMMA SINCE DEAD BY LRs, 5(a). MUNIRATHNAMMA D/O. MOTAPPA, AGED MAJOR, 5(b). BYRAMMA D/O. MOTAPPA, AGED ABOUT 52 YEARS, RESPONDENTS NO.5(a) TO 5(b) ARE RESIDING AT KANNUR VILLAGE, BIDARAHALLI HOBLI, BANGALORE EAST TALUK.
6. SMT. GANGAMMA W/O. LATE BODAPPA, AGED ABOUT 77 YEARS, BIDARAHALLI HOBLI, BANGALORE EAST TALUK.
7. SHRI. NARAYANASWAMY S/O LATE BODAPPA, AGED ABOUT 45 YEARS, R/AT. KANNUR VILLAGE, BIDARAHALLI HOBLI, BANGALORE EAST TALUK.
8. SHRI. CHAMPALA RAVINDRA BABU FATHER’S NAME NOT KNOWN, TO THE PETITIONERS MAJOR BY AGE, R/AT KANNUR VILLAGE, BIDARAHALLI HOBLI, BANGALORE EAST TALUK. … RESPONDENTS (BY SMT. SAVITHRAMMA, HCGP FOR R1 TO R4; SRI J.C.KUMAR, ADV., FOR R5(b), R6 & R7;
R5(a) AND R8 ARE SERVED & UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 10.10.2011 VIDE ANNEXURE-A PASSED BY THE SPECIAL DEPUTY COMMISSIONER, BANGALORE DISTRICT, BANGALORE.
THESE WRIT PETITIONS COMING ON FOR DICTATION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Both these writ petitions are filed by the subsequent purchasers assailing the order passed by the Special Deputy Commissioner, Bengaluru District, Bengaluru, in SC.ST (A) No.114/2005-06, by common order dated 10.10.2011 for having allowed the appeal filed by the legal heirs of grantee by setting aside the order of dismissal passed by the Assistant Commissioner dated 11.07.2005.
2. Heard the learned counsel for the parties.
3. The status of the parties before the Trial Court is retained for the sake of convenience.
4. The case of the petitioner in W.P.No.2279/2012 is that the land in Sy.No.16, New No.179 measuring 2 acres 10 guntas situated at Kannur village, Bidarahalli Hobli, Bangalore East Taluk, was granted to one Motappa on 16.08.1948. Subsequently, the said Motappa sold a portion of land measuring 1 acre 20 guntas to one Gangamma- respondent No.5 in W.P.No.2279/2012 and respondent No.6 in W.P.No.11481/2012 vide sale deed dated 07.02.1975. Subsequently, both the original grantee Motappa and the said Gangamma sold the property measuring 2 acres 19 guntas to one Tarabai on 17.07.1987. Subsequently, the said Tarabai sold a portion of land to respondent No.7-Channakeshavaiah in W.P.No.2279/2012 and remaining portion to one Fathima Mary. In turn, the petitioner in W.P.No.2279/2012 purchased 39.5 guntas of land from Channakeshavaiah on 05.06.2002 and the remaining portion of 20.08 guntas was purchased by the petitioner from respondent No.8-Jampala Ravindra Babu on 17.09.2009. The legal heirs of grantee had filed an application before the Assistant Commissioner under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (hereinafter referred to as the “PTCL Act” for short) for resumption and restoration of the granted land in their favour as the sale deeds are void in view of commencement of the PTCL Act from 01.01.1979. It is the case of the petitioners in W.P.No.11481/2012 that Tarabai after purchasing a portion of land from Motappa and Gangamma in the year 1987 sold a portion of land to Channakeshwaiah and Fathima Mary and in turn, the said Fathima Mary sold 38½ guntas in favour of petitioner Nos.1 and 3 namely Ashoka and Shashikala on 10.04.1993 and in turn, respondent Nos.5 to 7 purchased 1 acre 20 guntas of land. Subsequently, the legal heirs of the grantee and the said Gangamma filed application before the Assistant Commissioner. The Assistant Commissioner in both the petitions after considering the evidence on record stated that the grantee has not filed any proper documents and was unable to come to any conclusion. Therefore, the Assistant Commissioner dismissed both the cases by passing common order. Being aggrieved by the order of the Assistant Commissioner, the legal heirs of the grantee and the said Gangamma filed appeal before the Special Deputy Commissioner under Section 5-A of the PTCL Act. The Special Deputy Commissioner after considering the evidence on record allowed the appeal and declared the sale deeds as void in view of violation of Section 4(2) of the PTCL Act vide its judgment dated 10.10.2011. Assailing the same, the subsequent purchasers filed these writ petitions before this Court.
5. Learned counsel for the petitioners challenged the order of the Deputy Commissioner on the ground of delay and latches as the first sale deed took place in favour of Gangamma-respondent No.5 on 07.02.1975 and subsequently, the second sale deed was effected in the year 1987 in favour of Tarabai. In turn, said Gangamma sold a portion of land to Tarabai in the year 1987 and Motappa also sold remaining portion of land in the year 1987, but the resumption and restoration application came to be filed by the legal heirs of grantee only in the year 2012 after lapse of 15 years from the date of execution of second sale deed and 27 years delay in challenging the first sale deed in the year 1975 in the name of Gangamma. But, delay has not been explained by the legal heirs of grantee. The learned counsel for the petitioners in support of his contention has relied upon the judgments of the Hon’ble Supreme Court in the cases of Nekkanti Rama Lakshmi Vs. State of Karnataka and another reported in 2018(1) Kar.L.R 5 (SC) and Vivek M. Hinduja and Others vs. M.Ashwatha and Others reported in 2018 (1) Kar.L.R 176 (SC) and prayed for allowing the writ petitions.
6. On the other hand, the learned counsel for the legal heirs of grantee has strenuously contended that the appellants have not raised delay and latches before the Assistant Commissioner or before the Deputy Commissioner and no opportunity afforded to the legal heirs of grantee for explaining the delay in filing the application. In the recent judgment of the Division Bench of this Court in Smt. P.Kamala Vs. The State of Karnataka and Others in W.P.Nos.596-597/2016 and other connected cases decided on 08.07.2019, the Division Bench has remitted back the matter to the learned Single Judge for giving an opportunity to explain the delay along with documentary evidence. Therefore, he prayed for giving an opportunity to explain the delay in filing the application by the legal heirs of grantee. It is also contended that the Assistant Commissioner and the Deputy Commissioner have not followed the procedures under the PTCL Act, where proper enquiry has to be conducted in order to verify as to whether the land was granted to a person belonging to SC/ST community or whether the land was granted either on upset price or a free grant or for a price less than upset price and also to verify the alienation had taken place within the period of prohibition prescribed under the Rules as per the judgment of this Court in the case of Pedda Reddy Vs. State of Karnataka reported in ILR 1993 KAR 551. The principles laid down by this Court in Pedda Reddy’s case was upheld by the Division Bench of this Court in the case of Sri G.M.Venkatareddy and Another Vs. the Deputy Commissioner, Kolar District and Others reported in ILR 2012 KAR 3168 and prayed for dismissal of the writ petitions.
7. The learned HCGP by supporting the order passed by the Deputy Commissioner has contended that the sale deed was effected after commencement of the PTCL Act in the year 1978. Hence, there is only 15 years delay in approaching the authorities by the legal heirs of the grantee, which cannot be considered as inordinate delay on the part of the legal heirs. Therefore, the learned HCGP prayed for dismissal of the writ petitions and also contended that the judgment relied upon by the learned counsel for the petitioner in Pedda Reddy’s case, the Deputy Commissioner has considered all the above points while allowing the appeal and set aside the sale deeds and prayed for dismissing the writ petition.
8. Upon hearing the arguments of learned counsel for the parties, the only point that arise for my consideration is:
“Whether the order under challenge passed by the Deputy Commissioner is sustainable in view of delay and latches of 15 years in challenging the sale transactions?”
9. On perusal of the record, it is not in dispute that the land was granted to one Motappa on 16.08.1948 measuring 2 acres 10 guntas. It is also not disputed by the petitioners that the grantee was not belonging to SC/ST community and the land was granted on 16.08.1948 and as per the provisions under the Mysore Land Revenue Code, there is complete ban for alienation of granted land forever. Admittedly, the first sale deed executed in favour of Gangamma on 07.02.1975 is in violation of Section 4(1) of the PTCL Act and second sale deed effected on 17.07.1987 in favour of Tarabai was executed jointly by both Motappa along with his son Venkataramanappa together with subsequent purchaser namely Gangamma along with her children. Admittedly, either the first sale deed of Motappa in favour of Tarabai or second sale deed of Gangamma executed in favour of Tarabai in the year 1987 are clear violation of Sections 4(1) and 4(2) of the PTCL Act since the provision under Section 4(2) of the PTCL Act declares that the sale deed executed subsequent to the commencement of the PTCL Act in the year 1979 without permission of the Government is null and void. Thereby the parties have violated the terms of Land Grant Rules forever for non-alienation of the granted land in 1948. None of the parties produced any document to show that they obtained any permission from the Government while executing the sale deed in the year 1987.
10. The only contention raised by the learned counsel for the petitioners is that there is inordinate delay of 15 years in filing the restoration application by the legal heirs of grantee, which was filed in the year 2002 and there is 27 years delay in filing the application from the date of first sale deed which was effected in the year 1975. Admittedly, the learned counsel for the respondents till date has not chosen to file any affidavit or offered any explanation in the objection statement filed against these petitions before this Court and even before the Assistant Commissioner or Deputy Commissioner, no such contentions are offered to explain the delay of more than 15 years of executing the sale deeds by the legal heirs of the grantee. However, the learned counsel for the petitioners has brought to the notice of this Court that the petitioners have taken the contention of delay of 30 years in the objection statement filed before the Deputy Commissioner and while considering the delay and latches, the Hon’ble Apex Court in Nekkanti Rama Lakshmi’s case at paragraph No.8 of the judgment 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 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”.
In another case in Vivek M. Hinduja, the Hon’ble Apex Court has also held that there is no period of limitation prescribed in the PTCL Act. However, the parties ought to have approached the competent Court or Authority within the reasonable period beyond which no relief can be granted. Considering these two judgments, the Division Bench of this Court in the case of Ningamma and the Tibetian Children’s Village and Others in W.A.No.4092/2017 decided on 09.04.2019 has held that even delay of 12 years in filing the restoration application is considered as inordinate delay. Therefore, the Division Bench of this Court has set aside the order of restoration. The Hon’ble Apex Court in Vivek M. Hinduja’s case also held that the delay aspects to be considered even in suo motu proceedings. Admittedly, it has held that for more than 15 years in filing the application which has filed in the year 2002 from the date of execution of the sale deed in the year 1987, the delay is not properly explained by the parties either before the court below or before this Court by filing the objection statement in these cases. Therefore, the order passed by the Deputy Commissioner vide Annexure-A in both the cases dated 10.10.2011 in case No.SC/ST(A)114/2005-06 is not sustainable due to delay and latches. Therefore, the contention raised by the learned counsel for the respondents seeking time for filing affidavit for explaining the delay cannot be considered. It is also submitted by the learned counsel for the respondents that an opportunity must be given for explaining the delay in view of the decision of the Division Bench of this Court in Smt. P.Kamala’s case stated supra.
11. On the other hand, the learned counsel for the petitioners has produced a copy of the order of the Hon’ble Apex Court in Special Leave to Appeal (C) Nos.25606-25613/2019 where the Hon’ble Apex Court stayed the order passed by this Court in P.Kamala’s case stated supra. In view of staying the direction issued by the Division Bench of this Court in P.Kamala’s case, the contention taken by respondents’ counsel for granting time for explaining the delay is not sustainable. Though, the learned counsel for the respondents taken the contention in respect of Pedda Reddy’s case where this Court has directed to consider three points regarding grant of land to SC/ST person, violation and upset price, but in my considered opinion, the order of the Deputy Commissioner shows that the Deputy Commissioner has considered all these three points and has set aside the sale deeds as void which is challenged before this Court by the purchasers. Therefore, the contention of respondents’ counsel requesting the Court to remand the mater back to the Assistant Commissioner cannot be sustainable in view of the judgment of the Hon’ble Apex Court in Nekkanti Rama Lakshmi’s case supra. The judgment relied upon by the learned counsel for the petitioners in the case of Mrs. P.M.Revathi and others Vs. Sri Ambli Yogesh and Others passed in W.A.No.3127/2019 decided on 14.10.2019 is not at all relevant.
12. Therefore, considering all these aspects, in my opinion, the order passed by the Deputy Commissioner is liable to be set aside in view of delay and latches.
Accordingly, writ petitions are allowed. The order of the Deputy Commissioner dated 10.10.2011 in Case No.SC/ST(A) No.114/2005-06 vide Annexure-A is set aside.
Sd/- JUDGE PB