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.26671/2014 (SC/ST) BETWEEN:
1. SRI H.V. MUNE GOWDA S/O LATE VENKATESHAPPA, AGED ABOUT 43 YEARS, D. HOSUR VILLAGE, NANDI HOBLI, CHIKKABALAPUR TALUK.
2. SRI RAMACHANDRA H.V. S/O LATE VENKATESHAPPA, AGED ABOUT 43 YEARS, D. HOSUR VILLAGE, NANDI HOBLI, CHIKKABALAPUR TALUK.
…PETITIONERS (BY SRI JAYAKUMAR S.PATIL, ADV., FOR SRI MAHAMAD TAHIR A., ADV.,) AND:
1. DEPUTY COMMISSIONER, CHIKKABALAPUR DISTRICT – 562 101.
2. ASSISTANT COMMISSIONER CHIKKABALAPUR – 562 101.
3. MUNISHAMAPPA S/O LATE MUNEERIGA @ MUNEERAPPA DEAD BY LRs:
3(a). SRI RAMAKRISHNA S/O LATE MUNISHAMAPPA, 3(b). SRI MUNIRAJU S/O LATE MUNISHAMAPPA, BOTH ARE RESIDING AT DODDAMARALLI VILLAGE, NANDI HOBLI, CHIKKABALAPUR TALUK – 562 101.
[BY SMT. SAVITHRAMMA, HCGP FOR R1 & R2; SRI R. CHANDRASHEKAR, ADV., FOR …RESPONDENTS SRI SHARANAPPA GOWDA MALIPATIL, ADV., FOR R3(a-b)] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 02.06.2014 BY R1 VIDE ANNEXURE-D AND QUASH THE ORDER DATED 02.07.2012 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 petitioners who are the legal representatives of the purchaser by challenging the order passed by respondent No.1-Deputy Commissioner dated 02.06.2014 vide Annexure-D for having confirmed the order of resumption and restoration passed by respondent No.2-Assistant Commissioner, Chikkaballapur dated 02.07.2012 vide Annexure-C.
2. Heard the arguments of learned counsel for the petitioners and learned counsel for the LRs of respondent No.3 as well as learned HCGP.
3. The case of the petitioner in brief is that the land in survey No.162 of Doddamaralli village, Nandi Hobli, Chikkaballapur Taluk measuring 2 acres has been granted to Muniga on 20.04.1954 vide grant No.AKDR:47/1952-53. Subsequently, the said grantee sold the granted land in question on 25.10.1961 to Kempamma and the said Kempanna in turn sold the land to B.Venkateshappa-father of the petitioners on 11.10.1980. Subsequently to the commencement of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands Act), 1978, the grantee filed an application under Section 5 of the PTCL Act for resumption and restoration of the land before the Assistant Commissioner in the year 2008-
09. The learned Assistant Commissioner by his order dated 02.07.2012 allowed the application resumed and restored the land to the LRs of the grantee. The said order has been challenged before the Deputy Commissioner by the present petitioners and the learned Deputy Commissioner-respondent No.1 confirmed the order of the Assistant Commissioner vide Annexure-D dated 02.06.2014. By challenging the same, the legal representatives of the purchaser are before this Court by way of Writ Petition.
4. Learned counsel appearing for the petitioners contended that the land in question has been sold by the original grantee himself in the year 1961. Though there may be violation of the grant Rules and non-alienation clause imposed by the Government, but the original grantee filed an application for restoration in the year 2008, there is delay of 47 years in filing the restoration application, even the second sale deed was in the year 1980, there is 28 years delay in filing the restoration application. Even there is 29 years delay in filing the restoration application after commencement of the PTCL Act w.e.f., 01.01.1979.
It is further contented that, in view of the judgments of 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 Vivek M. Hinduja and Others vs. M.Ashwatha and Others., reported in 2018 (1) Kar.L.R 176 (SC), if there is in-ordinate delay in filing the restoration application, the order under challenge is not sustainable under law and hence, prayed for allowing the petition.
5. Per contra, learned counsel appearing for respondent No.3 who is the original grantee supported the orders passed by the authorities and contended that the land in question was granted to the original grantee on 20.04.1954 and the land grant Rules prohibit from alienating the land for 20 years, but the land was sold in the year 1961, which is seven years from the date of its grant. There is clear violation of the grant order. Thereby, the sale deed hit by Section 4 of the PTCL Act. Therefore, merely there is a delay in filing the restoration application that is not a ground for rejecting the claim of the grantee. Hence, prayed for dismissal of the writ petition.
6. Upon hearing the learned counsel for the parties as well as learned HCGP for respondent Nos.1 and 2 and on perusal of the record, the following only point arises for consideration before this Court:
“Whether the order under challenge is sustainable in view of delay and latches for more than 47 years in filing the restoration application?”
7. It is not in dispute that the land in question was granted to the deceased respondent No.3 by the Government vide order dated 20.04.1954. As per the Government Notification dated 04.08.1953, the land granted from 05.08.1953 to 06.07.1957, there is a condition to non-alienate the granted land for 20 years. Admittedly, the grantee belongs to SC/ST Community and the land granted falls under Section 3(i)(b) of the PTCL Act and in view of the sale deed effected within seven years of grant, there is clear violation of Land Grant Rules. However, the restoration application was filed by the original grantee in the year 2008. Admittedly, the first sale deed was effected on 25.10.1961 and there is delay for more than 47 years in filing the restoration application. The second sale deed was effected in the year 1980 and there is delay of 28 years. Even there is delay of 29 years in filing the application after commencement of the PTCL Act, which came into force from 01.01.1979. In the case on hand, learned counsel for the petitioner 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 Vivek M. Hinduja and others Vs. M. Ashwatha and others reported in 2018 (1) Kar. L.R 176 (SC). As per the judgment of the Hon’ble Apex Court in Nekkanti Rama Lakshmi’s case, at paragraph No.8 of the judgment it is 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.”
8. The Hon’ble Apex Court in Vivek M.Hinduja’s case (supra) has held that though there is no limitation prescribed in the PTCL Act, but 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 restoration order passed by the Authorities after initiating the proceedings based on the judgment of the Hon’ble Apex Court and the Division Bench of this Court has upheld the order of the learned Single Judge for having set aside the order of restoration in the case of Ningamma and the Tibetian Children’s Village and Others in W.A.No.4092/2017 dated 09.04.2019.
9. Admittedly, as held above, there is a delay of more than 47 years in filing the restoration application by the LRs of original grantee, no explanation is forthcoming before the authorities or before this Court to show that what would be the cause prevented them in filing the application for more than 47 years. Therefore, in view of inordinate delay and latches on the part of the parties for more than 47 years, the orders under challenge passed by the authorities are not sustainable in view of delay and latches. Accordingly, I pass the following ORDER Writ petition is allowed.
The orders under challenge passed by the Assistant Commissioner and Deputy Commissioner dated 02.07.2012 and 02.06.2014 vide Annexures-C and D are hereby set aside.
Sd/- JUDGE GBB/pb