IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION N0.18241/2015 A/W WRIT PETITION NO.18240/2015 (SC-ST) IN W.P. NO.18241/2015 BETWEEN:
R SRINIVASAIAH SINCE DECEASED BY HIS LRS 1. MAHALAKSHMAMMA, W/O LATE R. SRINIVASAIAH, AGED ABOUT 64 YEARS, OCC: HOUSE MAKER, 2 . MEENAKUMARI D/O LATE R. SRINIVASAIAH, AGED ABOUT 48 YEARS, OCC: HOUSE MAKER, 3 . S. SRIDHARA S/O LATE R. SRINIVASAIAH, AGED ABOUT 38 YEARS 4 . ARUNAKUMARI D/O LATE R. SRINIVASAIAH AGED ABOUT 32 YEARS, OCC: HOUSE MAKER, ALL ARE R/A NO.40, WARD NO.31, BEHIND TRAVELLER’S BUNGALOW, OPP: CENTRAL LIBRARY, CHIKKABALLAPURA-562 101.
(BY SRI RAJENDRA S., ADV., FOR SRI S.V.PRAKASH, ADVOCATE) AND:
...PETITIONERS 1 . STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY, REVENUE DEPARTMENT, M.S.BUILDINGS, DR. AMBEDKAR VEEDHI, BENGALURU – 560 001.
2 . THE DEPUTY COMMISSIONER CHIKKABALLAPURA DISTRICT CHIKKABALLAPURA – 562 101.
3 . THE ASSISTANT COMMISSIONER, CHIKKABALLALPURA SUB-DIVISION CHIKKABALLAPURA – 562 101.
4 . NARASIMHAIAH S/O LATE GADLA DASAPPA, AGED ABOUT 83 YEARS, RESIDENT OF CHIKKANAGANAHALLI, MANDIKAL HOBLI, CHIKKABALLAPUR DISTRICT- 572 121.
…RESPONDENTS (BY SMT.SAVITHRAMMA, HCGP FOR R1 TO R3, R4 SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 30.6.2014, PASSED BY THE R2 IN CASE NO.RA.SC/ST 19/12-13 PRODUCED AT ANN-B AND THE ORDER DT.29.8.2011, PASSED BY THE R3, IN CASE NO.PTCL [CHIKKA]-72/2007-08 PRODUCED AT ANN- A AND ETC.
IN W.P.NO.18240/2015 BETWEEN:
SMT. LAKSHMAMMA AGED ABOUT 74 YEARS, W/O LATE NARAYANAPPA, HOUSEMAKER AND AGRICULTURIST, R/O CHIKKANAGAEHALLI, POST ARURA, MANDIKAL HOBLI, CHIKKABALLAPURA TALUK & DISTRICT-572 121.
...PETITIONER (BY SRI RAJENDRA.S, ADVOCATE FOR SRI S.V.PRAKASH, ADVOCATE) AND:
1 . THE STATE OF KARNATAKA REP. BY PRINCIPAL SECRETARY, REVENUE DEPARTMENT, M.S. BUILDING, DR.AMBEDKAR VEEDHI, BANGALORE-560 001.
2 . THE DEPUTY COMMISSIONER CHIKKABALLAPURA DISTRICT, CHIKKABALLAPURA-562 101.
3 . THE ASSISTANT COMMISSIONER CHIKKABALLAPURA SUB-DIVISION, CHIKKABALLAPURA-562 101.
4 . C. NARASIMAHAIAH S/O LATE GODLABASAPPA, AGED ABOUT 76 YEARS, RA/O CHIKKANAGAVALLI VILLAGE, MANDIKAL HOBLI, CHIKKABALLAPURA TALUK & DISTRICT-572 121.
…RESPONDENTS (BY SMT. SAVITHRAMMA, HCGP FOR R1 TO R3 R4 SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 30.6.2014, PASSED BY THE R2 IN CASE NO.RA.SC/ST 19/12-13 PRODUCED AT ANN-B, CONFIRMING THE ORDER PASSED BY THE R3 DT.29.8.2011, IN CASE NO.PTCL [CHIKKA]72/2007-08 PRODUCED AT ANN-A TO THE WP AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners who are the purchasers have filed these writ petitions challenging the order dated 29.08.2011 passed by respondent No.3-Assistant Commissioner, Chikkaballapura, vide Annexure-A and the same was confirmed by respondent No.2-Deputy Commissioner by order dated 30.06.2014 vide Annexure-B.
2. Heard the arguments of learned counsel for the petitioners and learned HCGP for respondent Nos.1 to 3. Respondent No.4 – Narasimhaiah though served has remained absent in both the petitions.
3. The case of the petitioners are that, the petitioners in both the writ petitions are respondent Nos.1 and 2 before respondent No.3 - Assistant Commissioner. Respondent No.4 who is a grantee has filed an application under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (hereinafter referred to as “PTCL Act” for short) for restoration of the land in Sy.No.136/4 (old No.136/P6) measuring 4 acres said to be granted by the Government in the year 1955-
56. It is also alleged that the saguvali chit was issued by the Government on 23.01.1956. Subsequently, respondent No.4 who is the original grantee has sold 3 acres of land to one Narayanappa who is the husband of petitioner in W.P.No.18240/2015 on 30.5.1963. Subsequently, the remaining portion one acre of land sold to the petitioner - R.Srinivasaiah in W.P.No.18241/2015 vide sale deed dated 20.05.1967. Subsequently, after commencement of the PTCL Act on 1978 w.e.f., 1.1.1979 respondent No.4 - C.Narasimhaiah filed an application for restoration before the Assistant Commissioner on 23.07.2007. After issuing notice, respondent No.3-Assistant Commissioner has allowed the application of the grantee and restored the land in question by its order dated 29.8.2011 vide Annexure-A. Being aggrieved by the said order, the purchasers have filed an appeal before respondent No.2-Deputy Commissioner in RA/SC/ST/19/2012-13 and RA/SC/ST/20/2012-13.
After hearing the arguments of the parties, respondent No.2 - Deputy Commissioner dismissed their appeals and confirmed the order of respondent No.3 - Assistant Commissioner by its order dated 30.06.2014 vide Annexure-B. Assailing the said order passed by the Deputy Commissioner, the petitioners are before this Court in these writ petitions.
4. Learned counsel for the petitioners has mainly argued on only one point with regard to inordinate delay and latches on the part of respondent No.4 - original grantee in filing the restoration application which was filed in the year 2007 and it is further contended that the application came to be filed almost 28 years after the commencement of the PTCL Act w.e.f., 1.1.1979 and the sale deed in favour of R.Srinivasaiah who is the petitioner in W.P.No.18241/2015 was effected in the year 1967 i.e., almost 40 years after the alienation. Therefore, the application came to be filed and the first sale deed in favour of Narayanappa was effected in the year 1963. There is 43 years delay in challenging the first sale deed of Narayanappa executed by the original grantee. Therefore, the impugned orders passed by both the authorities below are not sustainable, in view of inordinate delay and latches in filing the restoration application. In support of his contention, learned counsel has relied upon the judgments of the Hon’ble Apex Court in the case of Nekkanti Rama Lakshmi Vs., State of Karnataka and Another reported in 2018(1) Kar.L.r 5(SC) and also the judgment of the Division Bench of this Court in the case of Sri Munimada @ Munimadappa Vs., The Special Deputy Commissioner and Others in W.A.No.372/2019 and connected matters disposed of on 03.07.2019. Hence, he prayed for setting aside the impugned orders and for allowing the writ petitions.
5. Learned HCGP for respondent Nos.1 to 3 by supporting the orders of both the Assistant Commissioner and the Deputy Commissioner has contended that the sale deeds were effected during the years 1963 and 1967 and saguvali chit was issued during the year 1956. Hence, there is clear violation of the land grant rules. The sale has taken place within seven years and 10 years of the date of land grant and thereby the sale deed is required to be declared as void. Hence, the learned HCGP has prayed for dismissal of the writ petitions. Respondent No.4 who is the original grantee is unrepresented even though notice was duly served.
6. Upon hearing the arguments of learned counsel for the petitioner as well as the learned HCGP and on perusal of the records, the following points arises for consideration before this Court:
“Whether the impugned orders challenged by the petitioners are sustainable in view of delay of more than 28 years after commencement of the PTCL Act w.e.f., 01.01.1979?”
7. It is not in dispute that the land in question measuring four acres in Sy.No.136/4 was granted to respondent No.4 by the Government vide order bearing No.A.K.D.R:28/1955-56 and the land was granted for free of cost to respondent No.4 who said to be belonged to SC/ST community which is not in dispute. As per the land grant order, there is a bar for alienation of granted land for 15 years from the date of issuing of saguvali chit, which was issued on 23.01.1956. Admittedly, the sale deed of Narayanappa who is the husband of petitioner in WP.No.18240/2015 was effected on 30.05.1963 within 7 years of the land grant order and the remaining portion of 1 acre was sold to the petitioner in W.P.No.18241/2015 in the year 1967 within 11 years of the land grant order. It is also not in dispute that on 23.07.2007 respondent No.4 filed an application for restoration of land under Section 5 of the PTCL Act, which came to be allowed by both respondent Nos.2 and 3. The only contention of the learned counsel for the petitioners/purchasers are that there is inordinate delay in filing the application by the grantees for restoration of the land.
8. In this regard, the learned counsel for the petitioners has relied upon Nekkanti Rama Lakshmi’s case, wherein the Hon’ble Apex Court at paragraph No.8 of the judgment has held as follows:
“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.”
9. The Hon’ble Apex Court also taken a similar view in the case of Vivek M. Hinduja and others Vs. M. Ashwatha and others reported in 2018 (1) Kar. L.R 176 (SC). The Hon’ble Apex Court in the case of Vivek M. Hinduja (supra) by referring to the judgments of Chhedi Lal Yadav and Others Vs. Hari Kishore Yadav (D) Thr. Lrs. & Ors., reported in 2017(6) SCALE 459 and the case of Nekkanti Rama Lakshmi’s (supra) has set aside the order of restoration on the ground of inordinate delay of 25 years after commencement of PTCL Act. Relying upon the decision of Nekkanti Rama Lakshmi’s case, the Division Bench of this Court in the case of Sri Munimada @ Munimadappa Vs., The Special Deputy Commissioner and Others in W.A.No.372/2019 and connected matters has upheld the judgment of the Co-ordinate Bench of this Court and dismissed the appeal against the order of Single Judge who set aside the order of restoration passed by the authorities.
10. In the case on hand, admittedly, the first sale deed was executed during the year 1963 and the second sale deed was executed during the year 1967 and the restoration application came to be filed in 2007 almost after 44 years of the first sale deed and 40 years of the second sale deed and the PTCL Act came into force w.e.f., 01.01.1979 and there was 28 years delay in filing the restoration application after commencement of the PTCL Act. There is an inordinate delay and latches on the part of respondent No.4 in filing the restoration application. Therefore, in view of the decision of the Hon’ble Apex Court as well as the Division Bench of this Court, the impugned orders passed by both respondent Nos.2 and 3 vide Annexures-A and B are not sustainable and requires to be set aside.
11. Accordingly, writ petitions are allowed. The impugned orders dated 30.06.2014 and 29.08.2011 passed by respondent Nos.2 and 3 - Deputy Commissioner and Assistant Commissioner vide Annexures-A and B are set aside.
Sd/- JUDGE PB