IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8th DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION No.13628/2018(SC/ST) BETWEEN 1 . SRI. KARAPPAN GOWNDER S/O LATE VEERAPPA GOWNDER AGED ABOUT 70 YEARS, 2 . SRI K VIJAYA KRISHNA S/O KARAPPAN GOWNDER, AGED ABOUT 40 YEARS, BOTH THE PETITIONERS ARE R/O KODALLIMARA VILLAGE, SIDDARAMANAHUNDI, KOLAGALA POST, HAMPAPURA HOBLI, H.D.KOTE TALUK, MYSORE DISTRICT -571125 (BY SRI A G SRIDHAR, ADVOCATE) AND 1 . STATE OF KARNATAKA ...PETITIONERS REPRESENTED BY ITS PRINCIPAL SECRETARY, REVENUE DEPARTMENT, M S BUILDING, BENGALURU-560 001 2 . THE DEPUTY COMMISSIONER MYSORE DISTRICT, MYSORE-570 001 3 . THE ASSISTANT COMMISSIONER HUNSUR SUB-DIVISION, HUNSUR, MYSORE DISTRICT-571 105 4 . SRI MAYAPPA S/O LATE CHELUVAIAH, AGED ABOUT 38 YEARS H.MATAKERE VILLAGE, KASABA HOBLI, H.D.KOTE TALUK, MYSORE DISTRICT- 571125 5 . SRI MAHADEVA @ MADEGOWDA, S/O LATE BASAPPA, AGED ABOUT 50 YEARS, 6 . SMT PADMAMMA D/O LATE BASAPPA, AGED ABOUT 45 YEARS, NO.5 & 6 ARE LR’S OF THIMMAMMA W/O MARIGOWDA & SRI BASAPPA S/O APPAGIGOWDA, R/AT YERAHALLI RAGI MILL HOUSE, KASABA HOBLI,H.D.KOTE TALUK, MYSORE DISTRICT 571125 7 . SRI NAZIR AHMED S/O LATE MOHAMMED HUSSAIN AGED ABOUT 55 YEARS 8 . SRI BASHIR AHMED S/O LATE MOHAMMED HUSSAIN AGED ABOUT 54 YEARS 9 . SRI A J AHMED S/O LATE MOHAMMED HUSSAIN AGED ABOUT 52 YEARS 10 . SRI IMTIYAZ S/O LATE MOHAMMED HUSSAIN AGED ABOUT 50 YEARS 11 . SRI MUSTAZ AHMED S/O LATE MOHAMMED HUSSAIN AGED ABOUT 48 YEARS NO.7 TO 11 ARE LR’S OF MOHAMMED HUSSAIN AND ALL ARE R/O JONI GIRI BEEDI H.D.KOTE TOWN, H.D.KOTE TALUK, MYSURU DISTRICT- 571125 12 . SRI TAJMAL HUSSAIN H A S/O LATE ABDUL HAZEEZ AGED ABOUT 45 YEARS 13 . SRI MUZAMAL HUSSAIN S/O LATE ABDUL HAZEEZ AGED ABOUT 43 YEARS 14 . SRI H .D.AFZAL HUSSAIN S/O LATE ABDUL HAZEEZ AGED ABOUT 40 YEARS 15 . SRI SUHAIL TANVEER H H S/O LATE ABDUL HAZEEZ AGED ABOUT 38 YEARS NO.12 TO 15 ARE LR’S OF LATE ABUL HAZEEZ S/O LATE MOHAMMED KHASIM ALL ARE R/O JONI GIRI STREET, NEAR DODDAMASEEDI, H.D.KOTE TOWN, H.D.KOTE TALUK, MYSURU DISTRICT 571125 …RESPONDENTS (BY SMT SAVITHRAMMA, HCGP FOR R1 TO R3 SRI UMASHANKAR L, ADVOCATE FOR R4 NOTICE TO R7, R10, R12, R13, R14, R15 ARE SERVED AND UNREPRESENTED NOTICE TO R5, R6, R8, R9 AND R11 ARE DISPENSED WITH VIDE ORDER DATED 23/8/2018) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PTCL NO.22/2011-12 DATED 6.3.2018 PASSED BY THE R-2 AT ANNEX-A AND ETC.
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 challenging the order dated 06.03.2018 passed by the Deputy Commissioner, Mysore District, vide Annexure-A whereby, the Deputy Commissioner allowed the application filed by respondent No.4 before the Assistant Commissioner under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (‘PTCL Act’ for short).
2. Heard the arguments of learned counsel for the petitioners and learned counsel for respondent No.4 as well as learned High Court Government Pleader for respondent Nos.1 to R.3.
3. The case of the petitioners is that respondent No.4, legal heir of the original grantee filed an application under Section 5(1) of the PTCL Act before the Assistant Commissioner, Hunsur, for restoration of the land in Sy.No.52/12 (new Sy.No.360) measuring 4 acres situated at H.D.Kote, Mysore District, which was granted to his father vide land grant order dated 13.06.1953. It is further alleged that his father sold a portion of the granted land measuring 2 acres on 27.04.1964 in favour Thimmamma, the grandmother of respondent Nos.5 and 6. Subsequently, the remaining portion of the land was sold by his father on 24.04.1967 in favour of Mohammed Hussain, the father of respondent Nos.7 to 11. Subsequently, those two purchasers said to have sold the said the land to the petitioners on 30.05.1986 and 03.01.1990. In view of the commencement of PTCL Act with effect from 01.01.1979, the Assistant Commissioner after hearing the arguments dismissed the application by order dated 14.12.2011 holding that the purchasers have perfected their title by way of adverse possession. Assailing the order of the Assistant Commissioner, respondent No.4, the legal heir of the grantee filed an appeal before the Deputy Commissioner. After considering the arguments, the Deputy Commissioner allowed the appeal and restored the land in question by nullifying the sale deeds of the petitioners as hit by Section 4(1) of the PTCL Act vide judgment dated 06.03.2018. Assailing the same, the petitioners are before this Court by way of this writ petition.
4. Learned counsel for the petitioners strenuously argued only on the point of delay and laches on the part of the legal heir of the grantee in filing the restoration application. Though the petitioners urged various grounds in the writ petition, but learned counsel for the petitioners restricted his arguments only on the point of delay. Learned counsel for the petitioners contended that though the land was granted on 13.06.1953, the first sale has been effected by the original grantee in the year 1964 and second sale in the year 1967. Thereafter, another sale deed was effected in the year 1972 and then the final sale took place where by the petitioners purchased the land on 30.05.1986 and 03.01.1990, but the Act came into force on 01.01.1979. There is inordinate delay of 45 years in filing the restoration application by the legal heir of the original grantee from the date of the first sale and 30 years from the date of commencement of the Act. Therefore, the order passed by the Deputy commissioner is not sustainable in law in view of the judgment of the Hon’ble Apex Court as well as judgment of this Court in a catena of decisions. He also placed reliance on the following judgments:
i) Nekkanti Rama Lakshmi vs. State of Karnataka and another 2018(1) Kar. L.R 5 (SC);
ii) Chhedi Lal Yadav and others vs.
Hari Kishore Yadav (D) Thr. LRs and others.
2018 (1) Kar. L.R 1 (SC);
iii) Vivek M. Hinduja and others vs.
M. Ashwatha and others. 2018 (1) Kar. L.R 176(SC);
iii) Sri S.M. Rajagopal vs.
Deputy Commissioner, Bangalore District & others.
2018 (2) Kar. L.R 58.
5. Per contra, learned counsel for respondent No.4, the legal heir of the original grantee, strenuously contended that the first sale was effected in the year 1964. The second sale was in the year 1967, but the land grant was made in the year 1953. There was a complete ban for alienating the property forever. Such being the case, the very alienation made by the grantee in favour of Thimmamma and Mohammed Hussain is null and void in view of the commencement of the Act. The Deputy Commissioner has rightly held that the sale deeds are void and restored the property in favour of respondent No.4.
6. During the course of argument, learned counsel also brought to the notice of this Court certain documents and the affidavit of respondent No.4 stating that the original grantee during his lifetime filed an application before the Assistant Commissioner. The same was numbered as No.HDK.SPT 89/79-80, but the said application came to be rejected as per the endorsement dated 21.12.1981 as the application was not in proper form, no court fee was paid and no information was furnished when the case was taken up before the Assistant Commissioner. Learned counsel contended that the father of respondent No.4, the original grantee died in the year 1983. Respondent No.4-legal heir of the original grantee was not aware of the filing of the application by his father. If the said application was filed by his father in 1983, then there is no delay in filing the application, but due to ignorance of the filing of the application by his father, respondent No.4 filed the application in the year 2009. Therefore, learned counsel prayed for dismissal of the petition.
7. Learned High Court Government Pleader appearing for respondent Nos.1 to 3 contended that the land grant was in the year 1953. There was complete ban as per the land grant rules forever. The grantee has alienated the property previously on 27.12.1963 by way of mortgage and subsequently, the said property was sold on 27.04.1964. There is a clear violation of the land grant order. Therefore, the same attracts Section 4(1) of the PTCL Act and hence, learned High Court Government Pleader supported the order passed by the Deputy Commissioner.
8. Upon hearing the arguments of learned counsel for the petitioners and learned counsel for respondent No.4 as well as learned High Court Government Pleader and on perusal of the record, it is not in dispute that the land in question measuring 4 acres in Sy.No.52/12 (New No.360) has been granted in favour of the father of respondent No.4 as free grant on 13.06.1953 by obtaining only Rs.10/- as per Annexure-B. Though learned counsel for the petitioners stated that the upset price has been collected by the government from the grantee, but the very order clearly goes to show that the land has been granted on a reduced price of Rs.10/- per acre. Therefore, the contention of learned counsel for the petitioners cannot be accepted that upset price has been collected by the government and it was granted to the persons belonging to scheduled castes and scheduled tribes, which falls under Section 3(i)(b) of the PTCL Act. It is also not in dispute that respondent No.4, who is the legal heir of the original grantee belong to scheduled caste community. However, as per the circular of the government, for the lands which were granted between 13.12.1938 and 04.08.1953, there is complete ban forever for alienation of the property. Subsequent to 1953, the condition was reduced to 20 years, later 15 years and thereafter 10 years as the case may be. It is clear that the sale deed effected by the grantee on 27.04.1964 and prior to that the mortgage deed dated 27.12.1963 and sale deed dated 24.04.1967 were all in clear violation of the land grant rules of the government. On perusal of the first sale deed of Thimmamma in 1964 also goes to show that a meager amount has been paid as sale consideration for alienating 2 acres of land. Therefore, the provisions of PTCL Act has been definitely violated on the execution of the sale deeds by the grantee. 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 held at paragraph 8 of the judgment 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 Chhedi Lal Yadav and others vs. Hari Kishore Yadav (D) Thr. LRs and others [2018 (1) Kar.L.R 1(SC) has taken a similar view that if there is inordinate delay of 20 to 24 years in filing the application, the restoration cannot be sustained. The Hon’ble Apex Court in the case Vivek M. Hinduja (supra) has taken a similar view holding that though the PTCL Act provide for limitation or prescribes limitation, but the parties are to approach the competent court within the time, beyond which no relief can be granted. The Hon’ble Apex Court also held that this principle would apply even for taking suo motu action. Based upon the judgment of the Hon’ble Apex Court, a Division Bench of this Court in WA No.372/2019 dated 03.07.2019 in the case of Munimada @ Munimadappa vs. The Special Deputy Commissioner and others has upheld the order of learned Single Judge of this Court for setting aside the order of restoration on the ground of delay, wherein the writ petition filed by the grantee came to be dismissed which was upheld by Division Bench in the case stated supra. In view of the judgment of the Hon’ble Apex Court and the Division Bench of this Court stated supra, on considering the case on hand, the first sale has been effected on 27.04.1964 and the second sale effected in the year 1967. There is 45 and 40 years delay in filing the restoration application. The PTCL Act came into force in with effect from 01.01.1979. The restoration application filed by the legal heir of the grantee is in the year 2009 i.e.
almost 30 years after the date of commencement of the PTCL Act. However, though learned counsel for respondent No.4 is able to show that the father of respondent No.4, the original grantee, filed an application for restoration in the year 1980 itself, but the said application came to be dismissed on 21.12.1981. The father of respondent No.4 ought to have challenged the order of rejection and the endorsement made by the Assistant Commissioner by filing appeal before the Deputy Commissioner or he could have filed writ petition before this Court challenging the order, since under Section 5 of the PTCL Act, the Assistant Commissioner suo motu can take the proceedings or on the application filed by the grantee for the purpose of restoration. Though the Assistant Commissioner committed error in rejecting the application of the original grantee in the year 1981 itself, but the same was not at all challenged by the grantee till 1983. Even after 1983, the legal heir of the grantee has not chosen to file application for almost 26 years. The legal heir has kept quiet without challenging the order of dismissal. Therefore, in my considered opinion, there is inordinate delay in filing the restoration application by legal heir of the original grantee. Therefore, the order passed by the Deputy Commissioner restoring the land in favour of the legal heir of the original grantee is not sustainable in view of delay and laches.
10. Accordingly, the petition is allowed. The order dated 06.03.2018 passed by the Deputy Commissioner, Mysore District, vide Annexure-A is hereby set aside.
Sd/- JUDGE mv