IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.59068/2015 (SC/ST) BETWEEN:
Sri. G. Shankar S/o G. Venkataramana, Aged about 47 years, No.39, Venkatadri, 22nd Main, Ayaodya Nagar, 5th Phase, J.P.Nagar, Bengaluru-560 011. ... Petitioner (By Smt. Sreedevi.K.B., Advocate) AND:
1. The Deputy Commissioner Bengaluru Rural District, Bengaluru-560 001.
2. The Assistant Commissioner Doddaballapur Sub-Division, Doddaballapur-561 203.
3. The Tahsildar Devanahalli Taluk, Devanahalli-562 110.
4. Smt. Poojamma W/o Late Venkatappa, AK Colony, Mudugallamma Temple Road, Devanahalli Town, Devanahalli Taluk, Bengaluru Rural District-562 110. ... Respondents (By Smt. Savithramma, HCGP for R1 to R3 R4 served and unrepresented) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India praying to quash the impugned order dated 20.04.2015 passed by the R-1 vide Annexure-A and allow the appeal filed by the petitioner vide Annexure-G and etc.
This Writ Petition coming on for Preliminary Hearing in ‘B’ Group this day, the Court made the following:
ORDER The petitioner has filed the petition challenging the order passed by the Deputy Commissioner dismissing the appeal filed by the petitioner under Section 5-A of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (‘the Act’ for brevity) by order dated 20.04.2015. By virtue of the dismissal of the appeal, the Deputy Commissioner has confirmed the order of the Assistant Commissioner at Annexure-F.
2. One Smt. Poojamma-respondent No.4, claiming to be grand daughter of the original grantee filed a petition before the Assistant Commissioner claiming that she belongs to Scheduled Caste and that the land in Sy.No.399 measuring 4 acres 21 guntas was granted on 11.04.1942 to her grand father Venkatappa S/o. Muniyappa. It was stated that by virtue of the sale deed dated 24.04.1953, the first sale was executed by the grantee, which was in violation of conditions imposed and also the rules prevailing providing for non-alienation of granted land.
3. The Assistant Commissioner in his order has recorded the finding that it was in fact a granted land and that the grantee belongs to Scheduled Caste and accordingly, after finding that there was violation of terms of the grant and provisions of the Act, had directed resumption of the land and restoration of the same to the applicant. The said matter was taken up in appeal before the Deputy Commissioner who, by his order dated 20.04.2015, dismissed the appeal. The said order is challenged before this Court.
4. It is contended that as per Section 5(1)(a) of the Act, statute requires that notice must be issued to all the affected persons. The said provision reads as under :-
“5. Resumption and restitution of granted lands: (1) Where, on application by any interested person or on information given in writing by any person or suo motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4, he may – (a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed:
Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard;”
5. It is stated that the petitioner, after having formed the layout, had executed sale deeds which is evidenced at Annexure-E which are the encumbrance certificates produced and it is contended that the entire extent of land has been alienated to various site holders.
6. It is further contended that the land had been converted from agricultural to non-agricultural purpose as is evident from the order of conversion at Annexure-C dated 11.04.2007 relating to conversion of an extent of 2 acres 10 guntas in Sy.No.399/2 of Devanahalli village, Kasaba Hobli, Devanahalli Taluk. Further by virtue of Annexure-D dated 15.07.2005 another extent of 2 acres 11 ½ guntas in Sy.No.399/1 of the same village was converted. It is stated that once conversion has been permitted by orders passed, the said fact is to be taken to be conclusive that the land is not a granted land since before the order of conversion is passed, the authority would necessarily have looked into the aspect as to whether it was granted land or not.
7. It is submitted that the first sale having been executed on 24.04.1953 by the original grantee and a further sale deed having been executed on 24.05.1957, the validity of the sale transactions have been sought to be impugned before the Assistant Commissioner only in the year 2007-2008 which is after an unreasonable period of time and relies on the judgment in the case of Vivek M.Hinduja and Others vs. M.Ashwatha and Others in Civil Appeal No.2166/2009 dated 06.12.2017 and submits that the petition be allowed as the grantee had approached the authority after an unreasonable period of time viz., after more than 50 years after the first sale and 30 years after the Act has come into force.
8. The learned High Court Government Pleader is not in a position to defend the action of the Assistant Commissioner in so far as the aspect of initiation of proceedings after an unreasonable period of time as contended by the petitioner.
9. Though various other contentions have been raised including that order is bad in law as affected parties have not been arrayed, that the relationship of Smt. Poojamma with the original grantee is not established.
10. However, without recording findings as regards the contention of the petitioner, relying on the law laid down in the case of Nekkanti Rama Lakshmi vs. State of Karnataka and another in Civil Appeal No.1390/2009 (Dated 26.10.2017), where the Apex Court at Para No.8 has held, after referring to the Judgment in Chhedi lal Yadav and Others vs. Hari Kishore Yadav (D) Thr. Lrs & Ors, 2017 (6) Scale 459, that provisions of the Statute must be invoked within a reasonable time, the Apex Court in the facts of the said case wherein application for restoration was made after 24 years, had held that the said period of delay in initiating proceedings was unreasonable and dismissed the application for restoration on that ground. The same position of law was reiterated in the case of Vivek M.Hinduja and others vs. M.Ashwatha and others in Civil Appeal No.2166/2009 (dated 06.12.2017), wherein, the Court has reiterated that the party who was a beneficiary had to approach the competent authority within a reasonable time, beyond which relief would not be granted.
11. The question as to existence of the condition permanent non-alienation would not make a difference in so far as the right to invoke the power is required to be exercised within a reasonable period of time. The facts of the present case is that the first alienation has taken place on 24.04.1953 and 24.05.1957 and the Act has come into force in the year 1979, hence initiation of proceedings in the year 2007-2008 is clearly not tenable in view of the law as laid down by the Apex Court.
12. The fact that the land has been converted for non-agricultural purpose in 2005 itself on 15.07.2005 and 11.04.2007 would also be taken note of, as the proceedings were being initiated subsequent to such conversion and what needs to be kept in mind is also that the property has been made into a layout after conversion and sold to different site holders, all of whom have not been made parties in the present proceedings.
Accordingly, in light of the above discussion, the writ petition is allowed and the order of the Deputy Commissioner at Annexure-A dated 20.04.2015 is set aside and accordingly, the order of the Assistant Commissioner dated 02.03.2009 is liable to be set aside.
Sd/-
JUDGE RB