IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.18666/2015 (SC/ST) Between:
1. Sri. Halappa S/o. Hanumanthappa Since deceased by his legal representatives.
a. Smt. Anasuyamma W/o. Narayanappa, Aged about 31 years, R/o. Rampura, Honnali Taluk, Davanagere District-577 002.
b. Sri. Narayanappa Husband of Smt. Anasuyamma, Aged about 36 years, R/o. Rampura, Honnali Taluk, Davanagere District-577 002.
2. Sri. Halasiddappa S/o. Halappa Since deceased by his legal representatives.
a. Sri R.S. Manjappa S/o. Halasiddappa, Aged about 56 years, R/o. Rampura, Honnali Taluk, Davanagere District-577 002.
b. Sri. Hanumanthappa S/o. Govindappa, Aged about 46 years, R/o. Rampura, Honnali Taluk, Davanagere District-577 002. …Petitioners (By Sri S Vishwajith Shetty, Advocate) And:
1. Deputy Commissioner, Davanagere District, Davanagere-577 002.
2. Assistant Commissioner, Davanagere-577 002.
3. Surendra S/o. Late Halappa, Aged about 40 years R/o. Rampura, Honnali Taluk, Davanagere District-577 002. …Respondents (By Smt. B.P.Radha, AGA. for R1 & R2; Sri S. V. Prakash, Advocate for R3) This Writ Petition is filed under Articles 226 & 227 of Constitution of India, praying to call for records from the R1 which resulted in passing the impugned order Annexure-A dated 17.4.2015 by the R1 and quash impugned order Annexure-A dated 17.04.2015 by the R-1 and etc.
This Writ Petition coming on for Orders, this day, the Court made the following:
ORDER The petitioners are assailing the order at Annexure-A dated 17.04.2015 whereby, the Deputy Commissioner, Davanagere District has set aside the order of Assistant Commissioner, Shimoga Sub-Division, Shimoga at Annexure-B dated 22.01.1981 and declared that the sale transaction as being in violation of Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 and directed the Government to resume possession.
2. The admitted facts being that the land measuring 5.00 acres, bearing Sy.No.161 situated at Ramapura Village, Honnali Taluk is said to have been granted in favour of Kariyappa on 17.05.1942. It is further stated that the land was purchased by petitioner No.2 under the registered sale deed dated 21.04.1964 and subsequently on 09.05.1967, a sale deed was executed by petitioner No.2 in favour of petitioner No.1. Initially, the wife of the grantee Kariyappa had initiated proceedings before the Assistant Commissioner seeking for a declaration that the sale transactions were invalid and had sought for restoration of the said land. The said claim made by the wife of the grantee came to be dismissed as per the order at Annexure-B dated 22.01.1981 holding that the sale transaction took place after 20 years of grant. The said order at Annexure-B for all practical purpose had become final. However, the son of the grantee once again had made a fresh application seeking for resumption and restoration and filed an application before the Assistant Commissioner on 21.03.2000, which came to be rejected by virtue of an endorsement at Annexure-C dated 03.07.2001 stating that on an earlier occasion, the application filed on behalf of the grantee had come to be dismissed on 22.01.1981. The endorsement dated 03.07.2001 came to be challenged before the Deputy Commissioner in an appeal bearing No.PTCL/CR-11/2013-14. In the said appeal, the Deputy Commissioner has set aside the endorsement dated 03.07.2011 issued by the Assistant Commissioner holding that the sale transaction is illegal and directed for resumption of land by virtue of the impugned order.
3. Sri S.V.Prakash, learned counsel appearing for the respondent No.3 has submitted that there is no legal bar insofar as action of other legal representatives to challenge the order is not taken away and has vehemently submitted that the wife of the grantee for the reasons best known did not take appropriate action within time.
4. On perusal of the order dated 17.04.2015 passed by the Deputy Commissioner, it is seen that no reasons are assigned for not having challenged the dismissal of application filed by the wife of grantee dated 22.01.1981 within reasonable time. Once a representative of the estate of grantee files an application and the same is disposed or dismissed, no further application by any other member of the family would be permissible in law, as the application first filed would exhaust the remedy insofar as the estate of the deceased is concerned. Hence, on this ground alone there ought not to have been any interference in the endorsement dated 03.07.2001 at the instance of the grandson of grantee. If at all, there is any grievance as regards the Assistant Commissioner’s order dated 22.01.1981, it ought to have been raised at the earliest point of time.
5. It is to be noted that it is the endeavour of the son of grantee once again, who made a fresh application for resumption of land in the year 2000, which came to be rejected in 2001 by the endorsement of the Assistant Commissioner. In fact, such an application was not maintainable without having challenged the validity of the order dated 22.01.1981 passed by the Assistant Commissioner. The appeal before the Deputy Commissioner again is a claim made by the grandson of the grantee seeking to challenge the order dated 22.01.1981 as well as the endorsement dated 03.07.2001.
6. The litigants cannot be permitted to abuse process of legal redressal available in installments. At the first instance, the wife of grantee has suffered an order before the Assistant Commissioner on 22.01.1981. At the second instance, the son of the grantee files an application on 21.03.2000 seeking for resumption of land and that having failed, in the year 2013, an appeal has been filed by the grandson of the grantee challenging the dismissal of application by the Assistant Commissioner on 22.01.1981 as well as the endorsement dated 03.07.2001, whereby the Assistant Commissioner had rejected the application filed on behalf of the son of grantee stating that on an earlier occasion, on 22.01.1981, the application filed on behalf of the wife of grantee had already been dismissed.
7. On the whole, this not only reveals the belated and delayed action being instituted by the representatives of grantee and further, once the wife of the grantee had suffered an order and the same not having been challenged is sought to be overcome by the son and after his son by the grandson of the grantee, such action cannot be permitted. The action of instituting proceedings as made out from the facts stated above 33 years after the application of the wife of the grantee came to be dismissed on 22.01.1981 without valid explanation is legally untenable. The Deputy Commissioner does not assign any reason as to why the order of the Assistant Commissioner dated 22.01.1981 is bad in law. No legally acceptable reasons have been assigned by the son when he had instituted proceedings for resumption and restoration (21.3.2000) for not having challenged the order suffered by his mother on 22.01.1981.
8. Accordingly, the present writ petition is allowed and the order of the Deputy Commissioner at Annexure-A dated 17.04.2015 is set aside after noticing that no valid reasons are assigned to set aside the order dated 22.01.1981 as well as the endorsement dated 03.07.2001 passed by the Assistant Commissioner.
9. In the meanwhile, it is noticed that the writ petition was filed on 28.04.2015 against the order of the Deputy Commissioner, while interim order was granted on 29.04.2015, however, as a result of non-communication of the interim order of stay in time, the possession was handed over without noticing the interim order of stay passed by this Court on 29.04.2015, hence, as on date the respondent No.3 is in possession.
10. In view of allowing of the present petition and setting aside of the order of the Deputy Commissioner, the Assistant Commissioner is directed to take steps to restore possession to the petitioner within ten days from the date of receipt of the order from this Court.
11. In the interregnum, till restitution/ resumption of the land in question is made, the respondent No.3 is restrained from excavating or changing the nature of the property so as to make it unfit for agricultural activity.
Sd/- JUDGE VGR Ct:sg