IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No. 40126/2014(SC-ST) BETWEEN:
S.M.RAJAGOPAL AGED ABOUT 64 YEARS, S/O MALIYAPPA, R/AT SATHNUR VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK.
... PETITIONER (BY SRI.G.BALAKRISHNA SHASTRY, ADV.) AND 1. DEPUTY COMMISSIONER BANGALORE DISTRICT, BANGALORE.
2. THE ASSISTANT COMMISSIONER, BANGALORE NORTH SUB-DIVISION, BANGALORE.
3. SMT. MUNIYAMMA, MAJOR, W/O LATE.THIMMARAYAPPA, 4. SRI S.T. MUNIRAJU, MAJOR, S/O LATE. THIMMARAYAPPA, RESPONDENTS 3 & 4 ARE, RESIDENTS OF SATHNUR VILLAGE, JALA HOBLI, BANGALORE NORTH TALUK.
... RESPONDENTS (BY SMT.SAVITHRAMMA, HCGP. FOR R1 & R2, SRI. KALYAN BASAVARAJ.S., ADV. FOR R3, SRI. K.B. SHIVAKUMAR, ADV. FOR R4.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 06.03.2014, MADE IN NO.SC-ST(A) 106/2007-08 (ANNX-A) PASSED BY THE R-1, AND ALSO THE ORDER DTD 29.02.2008, MADE IN CASE NO. KSC-ST 28.2007-08, (ANNX-F) PASSED BY R-2.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This writ petition is directed against the order dated 6.3.2014 passed by the respondent No.1 vide Annexure-A and order dated 29.2.2008 passed by the respondent No.2 vide Annexure-F.
2. The case of the petitioner is that the land measuring 2 Acres in Sy.No.54 of Sathanur Village, Jala Hobli, Bangalore North Taluk was granted in favour of Thimmarayappa on 16.1.1962 and saguvali Chit was issued in his favour. The said Thimmarayappa sold the said land in favour of the petitioner by executing a registered sale deed dated 2.1.1978 after the Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short “the Act”) came into force on 1.1.1979. The legal representatives of the original grantee have filed an application under Sections 4 & 5 of the said Act for restoration of the land before the Assistant Commissioner in the year 1999-2000. The Assistant Commissioner by order dated 7.5.2002 allowed the said application and restored the land in favour of legal representatives of the original grantee. Being aggrieved by the same, an appeal was filed by the petitioner-purchaser of the land before the Deputy Commissioner challenging the said order of the Assistant Commissioner in Appeal No.SC- ST(A)93/2005-06. The Deputy Commissioner vide order dated 4.4.2007 allowed the application filed by the petitioner herein and remanded the matter to the Assistant Commissioner with a specific direction to procure the original grant records and examine the same and pass the order. Pursuant to the remand, the Assistant Commissioner on 29.2.2008 has allowed the application filed the legal representatives of the original grantee. Being aggrieved by the same, the petitioner approached the Deputy Commissioner by filing an appeal. The Deputy Commissioner by order dated 6.3.2014 has dismissed the appeal filed by the petitioner and confirmed the order passed by the Assistant Commissioner. Being aggrieved by the order of the Deputy Commissioner, the petitioner is before this Court.
3. Sri.G. Balakrishna Shastry, the learned counsel appearing for the petitioner has contended that originally the land was granted in favour of one Thimmarayappa by the competent authority on 16.1.1962. The said Thimmarayappa sold the land in favour of the petitioner through registered sale deed dated 2.1.1978. He contended that in saguvali chit the non-alienation condition prevailing was 10 years. He has purchased the property after 15 years from the date of grant i.e., 16.1.1962. The legal representatives of the original grantee have filed the application for restoration of land in the year 1999- 2000 i.e., after 20 years from the date of execution of sale deed. Further, he has contended that the Assistant Commissioner and Deputy Commissioner have committed an error in holding that the land has been purchased without obtaining permission from the competent authority and is contrary to Section 4(2) of the said Act. As per Section 4(2) of the said Act, permission is required only after the Act came into force. Since the transaction has been taken before the Act came into force, the findings of the Assistant Commissioner as well as the Deputy Commissioner are contrary to law. He further contended that even in view of the law laid down by the Hon’ble Supreme Court in the case of Nekkanti Rama Lakshmi –v- State of Karnataka and Another reported in 2018 (1) Kar. LR 5 (SC), the application for restoration of land is filed beyond reasonable time. Therefore, he sought for allowing the petition.
4. The learned counsel appearing for the respondent Nos.3 and 4 submits that as on the date of grant, the condition prevailing was 15 years. It is contended that the land has been sold in favour of the petitioner without obtaining permission from the competent authority. Further, it is contended that in the case of Satyan –v- Deputy Commissioner and others reported in 2019 SCC Online SC 710, the Hon’ble Supreme Court has condoned delay of 8 years in filing the application for restoration of land. Hence, they sought for dismissal of the petition.
5. The learned counsel appearing for the State submits that the land has been granted on 16.1.1962 for free of cost. The condition prevailing as on the date of grant was 15 years. The property has been alienated before 15 years. Hence, she sought for dismissal of the writ petition.
6. Heard the learned counsel appearing for the parties.
7. It is not in dispute that the land measuring 2 acres in Sy.No.54 of Sathanur Village, Jala Hobli Bangalore North was granted to one Thimmarayappa on 16.1.1962. The said Thimmarayappa sold the same in favour of the petitioner by registered sale deed dated 2.1.1978 after the said Act came into force on 1.1.1979. The application under Sections 4 and 5 of the said act was filed in the year 1999.
Section 4(2) of the said Act reads thus:
“No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without previous permission of the Government”
It is very clear from the provisions of Section 4(2) of the said Act that any transaction after the Act came into force i.e., 1.1.1979, permission has to be obtained. In the case on hand, the property has been sold on 2.1.1978 i.e., before the Act came into force. Therefore, the findings of the authorities that the sale taken place is contrary to Section 4(2) of the Act, is unsustainable.
8. Further, the findings given by the authority that the land has been sold in the year 1977 is contrary to the materials available on record. The petitioner has purchased the land through registered sale deed. The sale deed clearly shows that the sale has been executed on 2.1.1978. The said Act has come into force on 1.1.1979 and the application for restoration of land is filed in the year 1999-2000. There is delay of almost 20 years in invoking the provisions of Sections 4 and 5 of the said Act. The Hon’ble Supreme Court in the case of Nekkanti Rama Lakshmi (supra) has held as follows:
“9. 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. In view of the observations made above, the impugned orders passed by the Assistant Commissioner and Deputy Commissioner are unsustainable.
10. Accordingly, the writ petition is allowed.
The order dated 6.3.2014 passed by the respondent No.1 vide Annexure-A and order dated 29.2.2008 passed by the respondent No.2 vide Annexure-F are hereby quashed.
Sd/- JUDGE DM