IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION No.26620 OF 2014 (SC/ST) BETWEEN SRI BALAKRISHNA AGED ABOUT 60 YEARS, S/O. PILLAPPA, D. HOSUR VILLAGE, NANDI HOBLI, CHIKKABALAPUR TALUK.
(BY SRI JAYAKUMAR S. PATIL, ADV., FOR SRI MAHAMMED TAHIR A., ADV.) AND 1. DEPUTY COMMISSIONER CHIKKABALAPUR DISTRICT – 562 101.
2. ASSISTANT COMMISSIONER CHIKKABALAPUR DISTRICT – 562 101.
3. MUNIGA @ MUNIYAPPA MAJOR, S/O. PAPIGHA @ PAPIAH, D. HOSUR VILLAGE, NANDI HOBLI, CHIKKABALAPUR DISTRICT – 562 101.
(BY SMT. SAVITHRAMMA, HCGP FOR R1 & R2; SRI R. CHANDRASHEKAR, ADV., FOR …PETITIONER …RESPONDENTS SRI SHARANAPPA GOWDA MALIPATIL, ADV., FOR R3.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 07.05.2014 BY R1 VIDE ANNEXURE-D AND QUASH THE ORDER DATED 14.09.2011 PASSED BY R2 VIDE ANNEXURE-C.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed by the petitioner assailing the order passed by the Deputy Commissioner vide Annexure-D dated 07.05.2014 for having confirmed the order of resumption and restoration passed by the Assistant Commissioner vide Annexure-C dated 14.09.2011.
2. Heard the arguments of learned counsel for the petitioner as well as respondent and learned HCGP.
3. The case of the petitioner is that the land in survey No.160 situated at Doddamaralli village, Nandi Hobli, Chikkaballapur Taluk measuring 2 acres has been granted to Muniga alias Muniyappa bin Papiga vide grant order No.A.K.D.R No.47/1952-53 dated 20.04.1954 on free of cost who belongs to Scheduled Castes/Scheduled Tribes. Subsequently on 22.10.1965, the said original grantee sold the portion of property measuring one acre to Navaneethamma and the remaining portion of the granted land also been sold to the same Navaneethamma on 12.07.1969. Thereafter, the said Navaneethamma sold the entire two acres of granted land to R.Nagaraj on 20.08.1983, subsequently, the said R.Nagaraj sold the said land on 28.03.1985 to Pillappa who is the father of the petitioner. After commencement of the PTCL Act, the original grantee filed an application before the Assistant Commissioner under Section 5 of the PTCL Act for resumption and restoration of the land. The Assistant Commissioner in his order dated 14.09.2011 vide Annexure-C allowed the application and restored the land to the original grantee. Assailing the same, the petitioner filed an appeal before the Deputy Commissioner, Chikkaballapur District. The learned Deputy Commissioner vide his order dated 07.05.2014 has dismissed the appeal and confirmed the order of restoration passed by the Assistant Commissioner. Assailing the same, the petitioner as the legal heir of the purchaser before this Court by way of Writ Petition.
4. Learned counsel appearing for the petitioner has vehemently contended that the land in question has been sold by the very grantee himself in the year 1965 and also in the year 1969 to Navaneethamma and even after the commencement of the Act in the year 1979 i.e., 01.01.1979, the grantees had not chosen to file any restoration application. Subsequently, the said Navaneethamma sold the granted land to R.Nagaraj in the year 1985 and again another sale deed took place in the same year 1985. The original grantee has filed an application of restoration only in the year 2008-09, almost after 32 years from the date of first sale, 29 years after second sale and thereafter, 25 years and 23 subsequently, Act came into force from 01.01.1979, there is 29 years delay in filing the application after commencement of the Act. There is an in-ordinate delay in filing the restoration application, that was not explained by the grantees. Therefore, the order under challenge is not sustainable in view of the judgment of the Hon’ble Apex Court in the case of Nekkanti Rama Lakshmi vs. State of Karnataka and another [2018(1) Kar.L.R 5 (SC)]; and another judgment in the case of Vivek M. Hinduja and Others vs. M.Ashwatha and Others., reported in 2018 (1) Kar.L.R 176 (SC) and prayed for allowing the petition.
5. Per contra, learned counsel appearing for respondent No.3, on behalf of the grantee has contended that the land grant has made in the year 1954, there is a bar of alienation of 20 years but sale deed was effected in the year 1965-1969 within 20 years. Thereby, there is violation of the Grant Rules and therefore, the sale deeds are void as per Section 4(1) and 4(2) of the PTCL Act and he has supported the orders passed by both respondent Nos.1 and 2 and prayed for dismissing the petition.
6. Learned HCGP has also supported the orders passed by the Assistant Commissioner and the Deputy Commissioner and contended that there is a clear violation of the Grant Rules for alienating the property for 20 years. Therefore, subsequent sale deeds are hit by Section 4 of the PTCL Act and hence, dismissed the writ petition.
7. Upon hearing the arguments of learned counsel for the petitioner as well as learned HCGP and on perusal of the records, the point that arises for consideration are:
“Whether the order under challenge passed by the Authorities are sustainable, in view of the delay and latches for more than 29 years of the sale deeds?”
8. On perusal of the records, it is an admitted fact from the arguments of the learned counsel for the parties that the land in question has been granted to respondent No.3 by the Government on 20.04.1954 measuring 2 acres in survey No.160 of Nandi Hobli, D.Hosur village, Chikkaballapur Taluk. Admittedly, the land in question was granted to respondent No.3 who belongs to the category of Scheduled Castes/Scheduled Tribes whereby the granted land falls under Section 3(1)(b) of the PTCL Act. During the year 1954, as per the Rules, previously 20 years non-alienation period has been mentioned while granting the land in question. Admittedly, as per the Government Notification, there is a bar of 20 years for non-alienation of property from 05.08.1953 to 06.07.1957.
9. Admittedly, the sale deed dated 22.10.1965 and second sale deed dated 12.07.1969 were all within 20 years. Thereby there is a clear violation of the grant Rules. However, the grantee himself has filed an application in the year 2008-09 in view of the commencement of the PTCL Act w.e.f., 01.01.1979. In this regard the learned counsel has relied upon the judgment of Hon’ble Apex Court in the case of Nekkanti Rama Lakshmi (supra) in view of the delay and latches in filing the restoration application, the order of restoration passed by the Authorities is not sustainable. The judgment of the Hon’ble Apex Court cited supra has held at para 8 is 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.”
10. Another judgment in the case of Vivek M. Hinduja and Others vs. M.Ashwatha and Others., reported in 2018 (1) Kar.L.R 176 (SC) has held that the party ought to have approached the Competent Authority within reasonable time beyond which no relief can be granted. In the said case, the Hon’ble Apex Court has set aside the order of restoration for having initiating the proceedings for about 20 to 25 years and also relied upon the judgment of 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 dated 09.04.2019 has already held that delay of more than 20 years and non explanation of the delay, the order of resumption and restoration is not sustainable. In view of the delay and latches and non-explanation of the delay by the side of the grantee for filing the restoration application, the order challenged is not sustainable.
11. Admittedly, the first sale deed was effected in the year 1965, there is 43 years of delay in filing the restoration application and 39 years delay in view of second sale deed and 29 years delay in filing the application after commencement of the Act from 01.01.1979 and remaining sale deeds were effected in the year 1983 and 1985, there is a delay of 25 and 23 years in filing the application, the delay were not satisfactorily explained by the grantee before the Authorities or before this Court.
12. Therefore, the order under challenge passed by the Authorities is not sustainable in view of the delay and latches on the part of the grantees in filing the restoration application. Hence, the petition filed by the petitioner - purchaser deserves to be allowed.
13. Accordingly, the Writ Petition is allowed. The order under challenge vide Annexure-C dated 14.09.2011 and Annexure-D dated 07.05.2014 are hereby set aside.
SD/- JUDGE GBB