IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION No.8955 of 2012 (SC/ST) BETWEEN SRI JOAGAIAH, S/O MOHARI SIDDAIAH, SINCE DEAD BY LRs i.e., PETITIONER Nos.1 TO 7 HEREIN BELOW, 1. SRI SIDDAIAH, AGED ABOUT 62 YEARS, S/O LATE JOGAIAH, KAMMARAVALLI VILLAGE, YELAVALA HOBLI, MYSORE TALUK AND DISTRICT - 571 130.
2. SRI KALAIAH, AGED ABOUT 59 YEARS, S/O LATE JOGAIAH, No.112, 2ND PHASE, 11TH CROSS, 8TH MAIN ROAD, HEBBAL, MYSORE - 570 012.
3. SRI SWAMY, AGED ABOUT 51 YEARS, S/O LATE PUTTASWAMY, 4. SRI ESHWAR, AGED ABOUT 45 YEARS, S/O LATE PUTTASWAMY, 5. SRI SIDDARAJU, AGED ABOUT 23 YEARS, S/O LATE DODDAIAH, 6. SRI PUTTAIAH, AGED ABOUT 46 YEARS, S/O LATE KARIYAIAH, 7. SRI SIDDAIAH AGED ABOUT 41 YEARS, S/O LATE KARIYAIAH, PETITIONER Nos.3 TO 7 ARE RESIDING AT KAMMARAVALLI VILLAGE, YELWALA HOBLI, MYSORE TALUK AND DISTRICT - 571 130.
(BY SRI VISHWANATH A., ADVOCATE FOR SRI B.S. NAGARAJ, ADVOCATE) AND 1. THE STATE OF KARNATAKA, REP. BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, M.S. BUILDING, DR. B.R. AMBEDKAR VEEDHI, BANGALORE - 560 001.
2. THE DEPUTY COMMISSIONER, MYSORE DISTRICT, MYSORE - 570 001.
3. THE ASSISTANT COMMISSIONER, MYSORE SUB-DIVISION, MYSORE - 570 001.
4. SRI CHELUVAIAH, AGED ABOUT 66 YEARS, S/O LATE HANUMA, 5. SRI VYRAMUDI AGED ABOUT 54 YEARS, ...PETITIONERS S/O LATE HANUMA, 6. PAPAIAH, S/O LATE HANUMA, SINCE DEAD BY HIS LEGAL REPRESENTATIVES 6(a) AND 6(b), 6(a). SMT. RATHNAMMA, AGED ABOUT 36 YEARS, W/O. LATE PAPAIAH, 6(b). SRI MADESHA, AGED ABOUT 4 YEARS, S/O LATE PAPAIAH, MINOR REP. BY HIS NATURAL GUARDIAN MOTHER RESPONDENT No.6(a).
RESPONDENT Nos.4, 5, 6(a) AND 6(b) ARE RESIDING AT KAMMARAVALLI VILLAGE, YELWAL HOBLI, MYSORE TALUK AND DISTRICT – 571 130.
… RESPONDENTS [BY SMT. SAVITHRAMMA, HCGP FOR R1 – R3; SRI NARENDRA D.V. GOWDA, ADVOCATE FOR R4, R5 AND R6 (a AND b)] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 27.08.2011 PASSED BY R3 ASSISTANT COMMISSIONER, MYSORE SUB-DIVISION THE CC OF THE SAID ORDER IS SUBMITTED HEREWITH AT ANNEXURE- A AND ALSO THE ORDER DATED 07.02.2012 PASSED BY R2- DEPUTY COMMISSIONER, MYSORE DISTRICT, MYSORE WHICH CONFIRMED THE ORDER DATED 27.08.2011 PASSED BY R3 ASSISTANT COMMISSIONER, AND ACCORDINGLY DISMISSED THE APPEAL VIDE ANNEXURE-B.
THIS WRIT PETITION COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed by the petitioners challenging the order dated 07.02.2012 passed by the Deputy Commissioner, Mysore District vide Annexure-B for having confirmed the order of resumption and restoration passed by the Assistant Commissioner, Mysore Sub-Division, Mysore District, vide Annexure-A dated 27.08.2011.
2. Heard the argument of learned counsel for the petitioners and learned High Court Government Pleader.
3. The case of the petitioners is that the land in Sy.No.147/7 measuring 4 acres has been granted to one Hanuma on 16.11.1955 with a condition not to alienate the land for 15 years as per the prevailing rules by issuing Saguvali chit. Subsequently, the said Hanuma sold the granted land in favour of one Jogaiah, the father of petitioner Nos.1 and 2 and grandfather of petitioner Nos.3 to 7 vide sale deed dated 04.12.1964. In view of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (‘PTCL Act’ for short), which came into force with effect from 01.01.1979, respondent Nos.4 to 6 being the legal representatives of Hanuma filed an application before the Assistant Commissioner under Section 5 of the PTCL Act for restoration of the land. The Assistant Commissioner after issuing notice and considering the evidence on record, allowed the application and restored the land in favour of the legal representatives of the grantee on 27.08.2011. Assailing the same, the petitioners, who are the legal representatives of the purchaser filed an appeal before the Deputy Commissioner. The Deputy Commissioner after considering the argument addressed in the matter, dismissed the appeal filed by the petitioners vide order dated 07.02.2012. Being aggrieved, the legal representatives of the purchaser are before this Court by way of this writ petition.
4. Learned counsel for the petitioners challenged the orders of the authorities on the point of delay in filing the restoration application filed by the legal representatives of the grantee and the purchaser also belongs to the same community of the grantee. Learned counsel for the petitioners contended that there is 44 years of delay in filing the application by the legal representatives of the grantee even though the sale was effected in the year 1964. Even otherwise, the PTCL Act came into force with effect from 01.01.1979 and there is 29 years of delay in filing the application. Therefore, in view of delay and laches, the orders passed by the Deputy Commissioner and the Assistant Commissioner are not sustainable. In support of his case, he relied upon the judgment of the Division Bench of this Court in the case of Thippe Rudrappa vs. G.M.Thippeswamy and others passed in WA No.766/2019 decided on 12.06.2019 and another judgment of a co-ordinate Bench of this Court in WP No.13396/2012 & WP No.17585/2012 decided on 21.12.2018. Hence, prayed for allowing the petition.
5. Learned High Court Government Pleader supports the orders passed by the authorities. However, the legal representatives of the grantee remained absent.
6. Upon hearing the argument of learned counsel and on perusal of the documents, the only question that arises for consideration is as under:
“Whether the orders of the authorities are sustainable in view of the delay and laches of 44 years in taking action under Section 5 of the PTCL Act?”
7. It is not in dispute that the land in Sy.No.147/7, measuring 4 acres of Bommenahalli village, Yelwala Hobli, Mysore Taluk, has been granted to one Hanuma under Darkast on 16.11.1955 on payment of Rs.30/- as ‘Kimmathu’. As per the Saguvali chit, there is a condition not to alienate the land for 15 years. Admittedly, the said grantee sold the land on 04.12.1964 in violation of the grant rules. The sale was effected within 15 years of the date of grant. However, the land was granted in favour of Hanuma who is the person belonging to scheduled caste and scheduled tribe community and under darkest. Admittedly, the legal representatives of the grantees filed restoration application under Section 5 of the PTCL Act in the year 2008. The sale took place in the year 1964. There is 44 years of delay in filing the application by the legal representatives of the grantee, which was filed in the year 2008. Even otherwise, the PTCL Act came into force with effect from 01.01.1979. Therefore, there is 29 years of delay in filing the application after commencement of the Act for taking action by the parties. In this regard, 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)]; Chhedi Lal Yadav and others vs. Hari Kishore Yadav (D) Thr. LRs and others [2018 (1) Kar.L.R 1(SC) and Vivek M. Hinduja and others vs. M. Ashwatha and others reported in 2018(1) Kar. L.R 176 (SC) has held that when there is inordinate delay in taking action for more than 20 to 25 years, the order of restoration is not sustainable. The Hon’ble Apex Court in the case of Nekkanti Rama Lakshmi (supra) at paragraph 8 has held as follows:
“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.”
9. The Hon’ble Apex Court in the case of Vivek M. Hinduja (supra) has held that the parties have to approach the competent Court within the reasonable time beyond which, no relief can be granted. The said principle is also applicable even to the suo motu action by the authorities under Section 5 of the PTCL Act. In view of the judgment of the Hon’ble Apex Court admittedly, in this case there is 44 years of delay in filing the application after the first sale and 29 years delay in filing the application after the commencement of the PTCL Act and the delay has not been properly explained by the legal representatives of the grantee either before the authorities or before this Court. Such being the case, the orders of the authorities are not sustainable due to delay and laches.
10. Accordingly, the writ petition is allowed. The order of the Deputy Commissioner vide Annexure-B dated 07.02.2012 and the order of the Assistant Commissioner vide Annexure-A dated 27.08.2011 are hereby set aside.
Sd/- JUDGE mv