IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION No.28263/2004 (SC/ST) BETWEEN SRI JAYANNA AGED ABOUT 40 YEARS, S/O. BADAGI SURAIAH, RESIDING AT CHITRAYYANAHATTI, CHELLAKERE TOWN, CHELLAKERE TALUK, CHITRADURGA DISTRICT.
…PETITIONER (BY SMT. MANJULA D., ADV., FOR SRI L. SRINIVASA BABU, ADV.) AND 1. THE DEPUTY COMMISSIONER CHITRADURGA DISTRICT, CHITRADURGA.
2. THE ASSISTANT COMMISSIONER CHITRADURGA SUB-DIVISION, CHITRADURGA.
3. SMT. KHATEJABI W/O. BUDEN SAB, SINCE DECEASED BY LR:
SRI SYED ILYAS, S/O. SYED BUDEN SAB, AGED ABOUT 50 YEARS, RESIDING AT CHELLAKERE TOWN, CHELLAKERE TALUK, CHITRADURGA DISTRICT.
(BY SMT. SAVITHRAMMA, HCGP FOR R1 & R2; SRI KALEEMULLAH SHARIFF, ADV., FOR R3.) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH VIDE ANNEXURE-E DATED 30.06.2004 BY R1 AND ALSO VIDE ANNEXURE-B DATED 29.09.1995 BY R2 AND DIRECTION TO THE R2 TO RESTORE THE LAND IN QUESTION IN FAVOUR OF THE PETITIONER.
THIS WRIT PETITION COMING ON FOR DICTATING ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed by the legal heir of the grantee by challenging the order passed by the Deputy Commissioner-respondent No.1 vide Annexure-E dated 30.06.2004 for having cancelled the order passed by the Assistant Commissioner for resumption of the land.
2. Heard the arguments of learned counsel for the petitioner and learned counsel for respondent No.3 as well as learned HCGP appearing for respondent Nos.1 and 2.
3. The case of the petitioner before the Assistant Commissioner is that the land in survey No.213 (New No.499) situated at Challakere village has been granted to Basaiah measuring 5 acres as per the grant order dated 23.10.1954 by the Deputy Commissioner with a condition, not to alienate the granted land for 20 years. Subsequently, on 10.02.1972, the said granted land has been purchased by the Smt. Khutejabi and subsequently, in view of the commencement of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands Act), 1978, the Assistant Commissioner took up suo motu proceedings under Section 5 of the PTCL Act (hereinafter referred to as ‘Act’) on the report submitted by the Taluk Tahsildar and after issuing notice to the legal heir of the grantee as well as the purchaser in the year 1995-1996. Subsequently, the legal heir of the grantee is said to be filed an application for restoration of the land. The Assistant Commissioner on the previous occasion dismissed the application of the legal heir of the grantee. However, the land has been resumed to the State as per Section 5(b) of the PTCL Act by order dated 29.09.1995. Assailing the resumption of the land, the purchaser filed an appeal before the Deputy Commissioner by taking various contentions and the Deputy Commissioner dismissed the appeal filed by the purchaser as per Annexure-C dated 13.08.1997. Later the purchaser filed the Writ Petition before this Court in W.P.No.36550/1997, dated 14.10.1998 wherein this Court allowed the writ petition and remitted the matter back to respondent No.1- Deputy Commissioner. Subsequently, the Deputy Commissioner by his order dated 30.06.2004 allowed the appeal in respect of appeal filed by the purchaser holding that the grantee does not belong to SC/ST and the caste of the grantee was included in the list of schedule only in the year 1991. Therefore, the land granted under Annexure-A was not granted land under PTCL Act, therefore, set aside the order of resumption passed by the Assistant Commissioner by its order dated 30.06.2004. Assailing the said order, the legal heir of the grantee filed the present writ petition before this Court.
4. Learned counsel for the petitioner strenuously argued that previously the land has been granted to the ancestor of the petitioner on 23.12.1954. They belong to Nayaka community. Though it was not included in the list of Scheduled Tribe under the notification issued by the President of India, but in the year 1991 the caste was included in the list of Scheduled Tribe and this matter has been previously referred to the Division Bench and later it was further referred to the Full Bench of this Court and Full Bench has held that if the caste of the petitioner included in the list of Scheduled Castes/Scheduled Tribes in the year 1991, the amendment goes back to the notification in the year 1950 with a retrospective effect. Thereafter, the matter has been remanded to this Court to decide the matter on merits. Thereby, the ancestor of the petitioner belongs to Scheduled Castes/Scheduled Tribes community, hence the land in question has been granted to the Scheduled Castes/Scheduled Tribes people which falls under Section 3(1)(b) of the PTCL Act and as per the conditions, there is 20 years bar for the alienation of the property and the property have been sold in the year 1972 and in view of the Section 4(1) of the PTCL Act, there is a contravention of the land grant order and in view of the commencement of the Act in the year 1979, the permission under Section 4(2) of the PTCL Act is mandatory but no such permission has been obtained for alienating the property. Therefore, the Assistant Commissioner ought to have restored the land in favour of the petitioner and the Deputy Commissioner ought to have remanded the matter back to the Assistant Commissioner for fresh consideration, but committed an error in allowing the appeal filed by respondent No.3-purchaser and therefore, prayed for allowing the petition.
5. Per contra, learned counsel appearing for respondent No.3-purchaser has contended that the order passed by the Assistant Commissioner has been challenged by respondent No.3 before the Deputy Commissioner and the petitioner had not at all challenged the same but has come up in this writ petition only after allowing the appeal filed by respondent No.3 before the Deputy Commissioner. The petitioner accepted the order of the Assistant Commissioner for having not restored the land in their favour and further contended that the land in question has been sold on 10.02.1972, the restoration application filed by the petitioner in the year 1995-1996 there was a delay of 16 years after the commencement of the Act. Even otherwise, the suo motu proceedings initiated by the Authorities is in the year 1992-1993 ie., after 20 years of the sale has been affected and 14 years after the commencement of the Act, therefore, there is an in-ordinate delay in initiating the proceedings by the Authorities, therefore, even if any order of resumption is passed, the same is not sustainable in view of the judgment in the case of Nekkanti Rama Lakshmi vs. State of Karnataka and another [2018(1) Kar.L.R 5 (SC)]; and in another decision of the Division Bench of this Court in connected writ appeal No.4092/2017(SC/ST) dated 09.04.2019, the Division Bench of this Court held that even 14 years delay in filing the application is inordinate delay.
6. Learned HCGP has contended that the land in question though granted to Basaiah, at that time the Nayaka community was not included in the list of Scheduled Tribe but subsequently, in the year 1991, the said caste has been included in the list of Scheduled Castes/Scheduled Tribes and therefore, the granted land construed as land granted under Section 3(1)(b) of the PTCL Act. Such being the case, the Deputy Commissioner ought to have ordered for restoration of the land but both the Assistant Commissioner as well as the Deputy Commissioner have dismissed the contention of the grantee only on the ground that they do not belong to the Scheduled Castes/Scheduled Tribes community as on the date of order of the grant. Therefore, learned HCGP has supported the contention raised by the petitioner in the writ petition.
7. Upon hearing the arguments of both the counsel for the parties as well as learned HCGP and perusing the records, the point that arises for my consideration:
whether the order of the Deputy Commissioner as well as the Assistant Commissioner are sustainable under the law in view of the judgment of the full Bench of this Court held in this writ petition?
8. On perusal of the record, it is worth mentioning some of the admitted facts, which are the land in question measuring 5 acres situated at Challakere village has been granted by the Government vide order dated 23.12.1954. The said order produced at Annexure-A which is the grant certificate mentions certain conditions that the granted land shall not be alienated for 20 years as per the grant Rules, which is para 8 of the land grant certificate. It is also not in dispute that the petitioner belongs to the Nayaka community and their caste has been inserted by the Government by Notification from 19.04.1991. The order of the Assistant Commissioner goes shows that, he took up suo moto proceedings under the PTCL Act after receiving the report from the Tahsildar dated 03.08.1993 in letter No.13/92-93. As per Section 5 of the PTCL Act the suo moto action is permissible. Subsequently, the Assistant Commissioner issued notice to the grantee as well as the purchaser on the ground that there is violation of the conditions of the grant certificate as the land has been sold on 10.02.1972 by violation of 20 years bar for non-alienation of the land. However, the Assistant Commissioner after the enquiry has held that the petitioner/grantee does not belong to the Scheduled Caste community. However, the said community has been included in the list of Scheduled Castes/Scheduled Tribes only in the year 1991. Therefore, the inclusion of the caste is prospective in nature and as on the date of grant of land, they do not belong to Scheduled Castes/Scheduled Tribes, therefore, PTCL Act will not attract. However, the Assistant Commissioner resumed the land in view of the violation of the land grant order vide order dated 29.09.1995. Assailing the order of resumption of the land, the purchaser- Khutejabi filed an appeal, but after the remand made by this Court in W.P.No.36550/1997, the learned Deputy Commissioner after hearing the arguments, allowed the appeal of respondent No.3 on the ground that the petitioner are the Legal heir of the grantee and were included in the list of Scheduled Castes/Scheduled Tribes only from 1991 onwards. Therefore, the said caste not included in the list of Scheduled Tribe prior to 1991. Therefore, the appeal filed by respondent No.3 is allowed and order of resumption has been set aside on the ground that the land does not comes under Section 3(1)(b) of the PTCL Act, assailing the same, the petitioner is before this Court.
9. The first point urged by the learned counsel for the petitioner is that the order of the Assistant Commissioner as well as the Deputy Commissioner dismissing the application of the petitioner only on the ground that they do not belong to Scheduled Castes/Scheduled Tribes as on the date of order of the grant in the year 1954 and their caste included only in the year 1991 and once the said caste has been included in the list, the benefits is available only in prospective nature after 1991 not prior to that. Therefore, the Assistant Commissioner though resumed the land on the ground that they do not belong to the Scheduled Castes/Scheduled Tribes as on the date of the grant order, the petitioner have not chosen to file any appeal and when they were made as a party before the Deputy Commissioner, they argued the matter. The Deputy Commissioner also committed an error in holding that the PTCL Act is not applicable holding that in view of inserting the Nayaka community only in the year 1991 and on the date they do not belong to the Nayaka community and land in question does not fall under the PTCL Act which is not challenged in respect of findings of both respondent Nos.1 and 2 only on the ground that the Assistant Commissioner has held that the petitioner does not belong to Scheduled Castes/Scheduled Tribes as on the date of its grant and only included in the year 1991 and the land in question does not fall under the PTCL Act.
10. In my considered opinion and in view of the decision of Full Bench of this Court in the case of Sri Jayanna vs. The Deputy Commissioner and others reported in 2013 ILR Karnataka 1489, the Full Bench has held that though the Nayaka community has been included in the Scheduled Castes/Scheduled Tribes list in the year 1991 and the said inclusion of the caste of the petitioner has retrospective effect and relate back to the presidential Notification, 1950. Once this Court has held that the petitioner belongs to the Nayaka community, though land granted in the year 1954 but the granted land is construed as the land granted to the Scheduled Castes/Scheduled Tribes people which falls under the definition of Section 3(1)(b) of PTCL Act. In view of the Section 3(1)(b) of PTCL Act, the order passed by both the Assistant Commissioner and the Deputy Commissioner holding that the land granted in question does not falls under the PTCL Act is not sustainable and though the Deputy Commissioner has set aside the order of resumption, but in view of my findings and findings of the Full Bench in the case of Sri Jayanna (supra), the order of the Deputy Commissioner releasing the property to the purchaser by dismissing the application filed by the grantee by respondent No.2 is not sustainable. Admittedly, the land in question has been granted in the year 1954 and as per the clause 8 of the Land Grant Certificate there is 20 years bar for alienating the granted land. Admittedly, the sale has taken place on 10.02.1972 prior to the expiry of 20 years. There is a clear contravention of 4(1) of the Act as granted land has been sold in contravention of the Land Grant Rules. Admittedly, the PTCL came into force with effect from 01.01.1979. The enquiry took up by the Tahsildar by submitting the report for the year 1992-93 to the Assistant Commissioner by stating that there is a violation of the land grant order. Based upon the enquiry, the report made by the Tahsildar, the Assistant Commissioner-respondent No.2 took up the suo moto proceedings under Section 5 of the PTCL Act and obtained the formal application from the Legal heir of the grantee, but after consideration, application came to be rejected. Though, the legal heir of the grantee has not filed any appeal before the Deputy Commissioner against the rejection of the application and only the purchaser approached the Deputy Commissioner by appeal for resumption of the land. No doubt the grantee not filed any appeal before the Deputy Commissioner but the fact remains that the Assistant Commissioner has held that the land does not fall under PTCL Act and the grantee do not belong to the Scheduled Castes/Scheduled Tribes community as on the date of land grant order. Such being the case, question of filing the appeal by the Legal heir of the grantee does not arise. Merely the legal heir have not filed any appeal, that itself is not a ground to reject the petition as the LRs was also a party in the proceedings in the appeal before the Deputy Commissioner and applicant before the Assistant Commissioner. Therefore, the contention raised by respondent No.3 is that no appeal has been filed by the LRs of the grantee before the Deputy Commissioner cannot be acceptable. The other contention raised by respondent No.3 is that there is an in-ordinate delay in filing the restoration application by the grantee. Admittedly, the land has been sold in the year 1972 and in view of commencement of the Act in the year 1979 i.e., 1.1.1979, the action taken by the Assistant Commissioner in the year 1993 thereby there is 14 years delay in taking action after commencement of the Act. There is 20 years of delay in taking up the proceedings by the Assistant Commissioner after the sale deed is executed in the year 1972.
11. Learned counsel for the petitioner has contended that though respondent No.3 raised the contention of delay and latches before this Court, but no such ground urged before either the Assistant Commissioner or the Deputy Commissioner in this regard. Therefore, prayed for the rejection of the contention of delay raised by the petitioner.
12. Admittedly, the Assistant Commissioner passed the order only on the ground that the grantee do not belongs to the Scheduled Castes/Scheduled Tribes and land does not fall under PTCL Act. The Deputy Commissioner also upheld the same but no where respondent No.3-purchaser raised the ground of delay and latches in the restoration application or in the appeal.
13. Learned counsel for the petitioner has relied upon the judgment of Division Bench in Writ Appeal Nos.596/2016 and 597/2016 wherein the Division Bench of this Court remanded the matter back to the Single Judge for giving liberty to the grantee for filing the application by showing sufficient cause for condoning the delay. The fact remains that there is a delay of 20 years in taking up the proceedings by the Assistant Commissioner in the year 1992 though the sale deed was effected in the year 1972. Further, though the restoration application filed by the original grantee in the year 1995, but the suo moto proceedings has been taken up by the Government Authorities in the year 1992 itself, ie., almost 14 years in taking up the proceedings and in view of the judgment of the Division Bench of this Court dated 08.07.2019 in the case of P.Kamala vs. State of Karnataka and others in Writ Appeal Nos.596-597/2016 (SC-ST) and connected matters, wherein respondent No.3 not at all raised any objection in respect of delay and latches and no liberty has been given to the petitioner for explaining the delay and as per Section 5 of the Act, the Assistant Commissioner is authorized to make an enquiry while passing the order of resumption as well as restoration. But both respondent Nos.1 and 2 have not at all passed any order of restoration in favour of the petitioner and they dismissed the application only on the ground that the petitioner does not belong to Scheduled Castes/Scheduled Tribes community and the land does not comes under the PTCL Act. Such being the case, both the orders challenged in this writ petition required to be set aside. However, the contention raised by the counsel for respondent No.3 in this petition is with regard to delay in filing the restoration application, though 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)]; has set aside the order of restoration on the ground of delay and latches but in view of the judgment of the Division Bench of this Court in the case of P.Kamala (supra),wherein the Division Bench has remanded the matter back to the Single Judge for giving an opportunity for the grantee to explain the delay in filing the application. Such being the case, if any ground of delay in taking action by the Authorities as urged by the counsel for respondent No.3, this Court has not given any opportunity to explain the delay. The learned counsel for the petitioner also contended that the law of limitation will not applicable to the Quasi Judicial Body. However, the liberty reserved for the Authorities to consider the ground urged by the parties.
14. By considering the entire facts and circumstances of the case, this Court deems fit that the matter is required to be remanded back for fresh consideration by respondent No.2-the Assistant Commissioner. Keeping open all the contentions raised by the parties, I pass the following order:
i) Writ Petition is allowed.
ii) The order challenged under Annexure-B and E and order passed by respondent Nos.1 and 2 are set aside and the matter is remanded back to the Assistant Commissioner for fresh consideration after making fresh enquiry and if any objection is raised by respondent No.3 in respect of delay and latches, then the opportunity shall be afforded to the petitioner for explaining the delay and latches and all the contentions of the parties are kept open.
iii) Parties are directed to appear before the Assistant Commissioner without any further notice by 19.12.2019.
Sd/- JUDGE GBB