IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.31115/2018 (SC-ST) Between:
1. Sri M.Shivaramaiah, S/o Late Mudlaiah, Aged 65 years.
2. Sri Mallikarjunaiah, S/o Late Mudlaiah, Aged 62 years.
Both 1 & 2 residing at P.Gollhalli Village, Sorekunte Post, Bellavi Hobli, Tumkur Taluk, Tumkur District – 572 128. … Petitioners (By Sri Vivek Holla, Advocate) And:
1. Deputy Commissioner, Mini Vidhana Soudha, Tumkur – 572 102.
2. Assistant Commissioner, Tumkur Sub-Division, Tumkur – 572 102.
3. Sri Lakshmaiah, S/o Late Kuriramaiah, Aged about 64 years, P.Gollhalli Village, Sorekunte Post, Bellavi Hobli, Tumkur Taluk, Tumkur District – 572 128.
4. Special Land Acquisition Officer, KIADB, Maruti Towers, 1st Floor, Beside SIT Main Gate, B.H. Road, Tumkur – 572 102. … Respondents (By Smt. Savithramma, HCGP for R-1 & R-2; Sri H. Ashok Kumar, Advocate for R-3;
Sri Basavaraj V. Sabarad, Advocate for R-4) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the order passed by the 1st respondent authority in case bearing dated 13.07.2018 vide Annexure-E and restore the order passed by the 2nd respondent authority dated 13.12.2017 vide Annexure-D thereby dismissing the application made by the 3rd respondent seeking restoration of the lands in question and etc.
This Writ Petition coming on for preliminary hearing in ‘B’ Group this day, the Court made the following:
ORDER The petitioners, who are the purchasers of property bearing Sy.No.80 (old Sy.No.9/11) measuring an extent of 3.00 acres situated at Gollahalli Village, Bellavi Hobli, Tumkur Taluk have assailed the order of the Deputy Commissioner at Annexure-E whereby, the Deputy Commissioner, by his order dated 13.07.2018 has set aside the order of the Assistant Commissioner dated 13.12.2017 and has ordered for resumption and restoration of land to the son of the grantee Lakshmaiah.
2. The facts as made out in the petition are that the land measuring an extent of 3.00 acres bearing Sy.No.80 (old Sy.No.9/11) was granted in favour of Sri Kuriramaiah. It is stated that on 17.05.1965 the original grantee Sri Kuriramaiah has sold the land in favour of Sri Mudlaiah, the father of the petitioners. It is further stated that there were proceedings for land acquisition subsequently initiated by the Karnataka Industrial Areas and Development Board (KIADB). It is on 07.11.2015 that the son of the grantee Sri Lakshmaiah, respondent No.3 herein had initiated proceedings under Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (‘PTCL Act’ for short) seeking for setting aside of the sale deed dated 17.05.1965 and has sought for resumption and restoration of the land in favour of grantee’s family. The Assistant Commissioner has dismissed the application filed on behalf of the grantee while observing that the grant is made in a public auction on payment of full value of the land and accordingly held that the prohibition of alienation and provisions of the PTCL Act imposing restrictions on the right of enjoyment are not applicable. This order of the Assistant Commissioner was taken up in appeal before the Deputy Commissioner, who by his order dated 13.07.2018 has set aside the order of the Assistant Commissioner dated 13.12.2017 and directed for resumption and restoration of the land.
3. Though various contentions have been raised by the petitioners, who are children of late Mudlaiah and who had purchased the land, that the grant was on an upset price and hence the provisions of PTCL Act do not apply and that the sale deed was executed in the year 1965 and the Act has come into force on 01.01.1979 and by then the purchasers had perfected the title by prescription, however, the petition is being disposed of by taking note of the contention of petitioners that power could not have been exercised by the statutory Authorities after an unreasonable period of time. It is noted that the first sale was on 17.05.1965 while application on behalf of the grantee was made before the Assistant Commissioner only on 07.11.2015, which is after 36 years after the PTCL Act came into force and 50 years from the date of first sale.
4. Though learned counsel appearing for the respondent No.3 contends that Valmiki Caste was notified only in the year 1991 and hence they have approached the Authorities within a reasonable time.
Even if the say of third respondent is to be accepted, the delay in approaching the Assistant Commissioner to initiate action is 24 years.
5. However, without recording findings as regards the various contentions advanced by the petitioners relying on the law laid down in the case of Mariyappa v. Dr.N.Thimmarayappa and others reported in ILR 2004 KAR 3298 and in view of the judgment of the Apex Court in the case of Vivek M. Hinduja and others v. M.Ashwatha and others in Civil Appeal No.2166/2009 (dated 06.12.2017) referred to (supra) and also the judgment in Nekkanti Rama Lakshmi v. State of Karnataka and Another in Civil Appeal No.1390/2009 (dated 26.10.2017) where the Apex Court at para No.8 has held, after referring to the judgment in the case of Chhedi lal Yadav and others v. Hari Kishore Yadav (dead) Thr. Lrs & Others reported in (2018) 12 SCC 527, that provisions of the statute must be invoked within a reasonable time, the present writ is being disposed of. The Apex Court in the facts of the said case Nekkanti Rama Lakshmi (supra), wherein application for restoration was made after 24 years, had held that the said period of delay in initiating proceedings was unreasonable and dismissed the application for restoration on that ground. The same position of law was reiterated in the case of Vivek M.Hinduja and others v. M.Ashwatha and others in Civil Appeal No.2166/2009 (Dated 06.12.2017), wherein at paragraph No.10, the Court has reiterated that the party who is a beneficiary had to approach the competent authority within a reasonable time, beyond which relief would not be granted.
6. The question as to existence of the condition permanent non-alienation would not make a difference in so far as the right to invoke the power is required to be exercised within a reasonable period of time. Hence, noting that the legal heir of the grantee has approached the Assistant Commissioner on 13.12.2017 when the first sale was on 17.05.1965 and the PTCL Act has come into force on 01.01.1979, which would clearly show that the grantees have slept over their rights and could not have sought for initiation of proceedings at a belated point of time as per the law laid down by the Apex Court referred to above.
7. In view of the above observations, this petition is allowed and the order of the Deputy Commissioner at Annexure-E dated 13.07.2018 is set aside.
Sd/- JUDGE VGR