IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION No.1086 of 2015 (SC/ST) BETWEEN SRI MUNIYAPPA, S/O LATE THIMMAIAH, AGED ABOUT 67 YEARS, RESIDING AT RAMANAHALLI VILLAGE, JONNAHALLI DAKHALE, CHANNARAYAPATNA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT - 560 022.
(BY SRI V.F. KUMBAR, ADVOCATE) AND 1. THE DEPUTY COMMISSIONER, BANGALORE RURAL DISTRICT, V.V. TOWER, PODIUM BLOCK, 2ND FLOOR, DR. B.R. AMBEDKAR VEEDHI, BANGALORE - 560 001.
2. THE ASSISTANT COMMISSIONER, DODDABALLAPUR SUB-DIVISION, BANGALORE - 560 001, NOW THE OFFICE IS SHIFTED AND WORKING AT DODDABALLAPUR - 561 203, BANGALORE RURAL DISTRICT.
...PETITIONER 3. SRI MUNIYAPPA, S/O DODDAMYLARAPPA, AGED ABOUT 45 YEARS, 4. SRI MALLESH, S/O DODDAMYLARAPPA, AGED ABOUT 42 YEARS, 5. SRI RAMACHANDRA, S/O DODDAMYLARAPPA, AGED ABOUT 36 YEARS, 6. SRI MUNIRAJU, S/O CHIKKAMYLARAPPA, AGED ABOUT 46 YEARS, 7. SRI NARAYANASWAMY, S/O CHIKKAMYLARAPPA, AGED ABOUT 44 YEARS, 8. SRI MUNIYAPPA, S/O CHIKKAMYLARAPPA, AGED ABOUT 42 YEARS, 9. SRI MURTHY, S/O CHIKKAMYLARAPPA, AGED ABOUT 36 YEARS, 10. SRI MANJUNATH, S/O CHIKKAMYLARAPPA, AGED ABOUT 34 YEARS, 11. SRI ANJINAPPA, S/O BACHAPPA, AGED ABOUT 76 YEARS, 12. SRI DYAVAPPA, S/O BACHAPPA, AGED ABOUT 71 YEARS, 13. SRI NARAYANASWAMY, S/O BACHAPPA, AGED ABOUT 66 YEARS, 14. SRI KRISHNAPPA, S/O BACHAPPA, AGED ABOUT 61 YEARS, ALL RESPONDENTS 3 TO 14 ARE RESIDING AT SOMATHANAHALLI VILLAGE, CHANNARAYAPATNA HOBLI, DEVANAHALLI TALUK – 582 110.
(BY SMT. SAVITHRAMMA, HCGP FOR R1 & R2; SRI B.V. GANGI REDDY, ADVOCATE FOR R3; R10 (NOC), R11-R14 ARE SERVED.) … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH AN ORDER PASSED BY THE RESPONDENT No.1 AT ANNEXURE-D, IN No.LND.SC.ST.(A)71/2008-2009, DATED 07.11.2012.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This petition is filed by the petitioner challenging the order passed by respondent No.1-Deputy Commissioner passed in LND/SCST(A) 71/2008-09 as per Annexure-D by allowing the appeal filed by respondent Nos.3 to 10 challenging the order of dismissal of their application filed under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred as PTCL) by the Assistant Commissioner as per Annexure-C.
2. Heard the arguments of the learned counsel for the petitioner, learned counsel for respondent Nos.3 to 10 as well as learned High Court Government Pleader.
3. The rank of the parties before the Assistant Commissioner is retained for the sake of brevity.
4. The case of the petitioner is that respondent Nos.3 to 10 being the LRs of the original grantee Muniyappa has filed the application before the Assistant Commissioner under Section 5 of the PTCL Act claiming that the land measuring 7 acres 24 guntas in survey No.158 granted by the Government in favour of Munishamappa in the year 1942 in the Grow More Food Scheme by temporary grant. Subsequently, on 10.06.1964, the grant was confirmed by the Deputy Commissioner in the name of the Munishamappa. Subsequently, the children of Munishamappa namely Dodda Mylarappa and Chikka Mylarappa have sold the portion of the property measuring 2 acres 20 guntas to Chikka Muniyappa on 13.08.1970. Subsequently, Chikka Muniyappa sold the said portion of the land to Bachappa on 20.10.1972. Then after commencement of the PTCL in the year 1979, the children of Dodda Mylarappa and Chikka Mylarappa had filed resumption and restoration application in the year 2007 before the Assistant Commissioner. The Assistant Commissioner after considering the documents on record, dismissed the application on 04.07.2008 as per Annexure-C on the ground that the petitioners have not produced any records pertaining to the grant made in respect of the land. Assailing the order passed by the Assistant Commissioner, respondent Nos.3 to 10 have filed the appeal before the Deputy Commissioner-Respondent No.1 in appeal No.LND/SCST(A) 71/2008-09 and the Deputy Commissioner passed an order as per Annexure-D has set aside the order of the Assistant Commissioner and allowed the application filed by the LRs of the grantee and restored the land in favour of the respondent Nos.3 to 10 herein. It is borne out from the arguments of the learned counsel for the petitioner that the petitioner after dismissal of the application by the Assistant Commissioner, the LRs of the Bachappa sold the land in question on 21.10.2008 to the petitioner herein. Learned counsel for the petitioner contended that the land in question though granted in the year 1964 and first sale was effected in the year 1970, second sale was effected in the year 1972, the resumption and restoration application filed by the LRs of the grantees in the year 2009. Almost 37 years of first sale and 35 years after the second sale and even otherwise, 28 years delay in filing the application after the commencement of the PTCL Act of 1978 in the year 1979 i.e., 01.01.1979. Therefore, the learned counsel contended that there is inordinate delay in filing the applications for restoration and therefore, the Deputy Commissioner ought not to have allowed the application and hence, prayed for allowing the petition and to set aside the impugned order of respondent No.1. In support of the contention, the learned counsel has relied upon the judgment of Nekkanti Rama Lakshmi vs. State of Karnataka and another [2018(1) Kar.L.R 5 (SC)]; and Chhedi Lal Yadav and others vs. Hari Kishore Yadav (D) Thr. LRs and others [2018 (1) Kar.L.R 1(SC).
5. Per contra, the learned advocate appearing for respondent Nos.3 to 10, the legal representatives of the grantee has contended that the petitioner has no locus standi to challenge the order of the Deputy Commissioner as the petitioner was not at all a party to the proceedings before the Deputy Commissioner. Though this application came to be filed for impleading himself as respondent in the appeal, which came to be dismissed, though respondent Nos.11 to 14 are the proper parties to challenge the order, but they have not challenged the same. Therefore, on these grounds, he prayed to dismiss the petition.
6. Learned counsel for the petitioner while arguing on merits of the case submitted that as per the judgment of the Hon’ble Apex Court in the case of Satyan vs. Deputy Commissioner and Others reported in AIR 2019 SC 2797, has held that if the sale is contravention of the land grant order, the Act under Section 4(1) would apply. Here in this case, the sale was effected within 6 years of the land grant and though there is violation of the grant order, but there is inordinate delay in filing the restoration application. Therefore, the order of the Deputy Commissioner is not sustainable and hence, prayed for allowing the petition.
7. Learned High Court Government Pleader has supported the order passed by the Deputy Commissioner and prayed for dismissing the petition.
8. Having heard the arguments of learned counsel for the petitioner, learned counsel for respondent No.3 and also the learned High Court Government Pleader and on perusal of the record, it is not in dispute that the land measuring 7 acres 24 guntas has been granted to one Munishamappa, the father of Mylarappa who is said to be in occupation of the said land and cultivating the land which was granted to him under ‘Grow More Food Scheme’ in the year 1942. Subsequently, on 10.06.1964, the Grant was confirmed. Therefore, the sons of Munishamappa namely, Chikka Mylarappa and Dodda Mylarappa sold a portion of the land measuring 2 acres 20 guntas to one Chikamuniyappa on 13.08.1970. In turn, Chicka Muniyappa sold the said portion of the land to one Bachappa on 20.10.1972. Thereafter, the children of the original grantee filed an application for resumption and restoration under 5 of the PTCL Act before the Assistant Commissioner in the year 2007. The learned Assistant Commissioner by his order dated 04.07.2008 dismissed the application filed under Section 5 of the Act. In the appeal filed by the legal representatives of the grantee, the Deputy Commissioner passed the order on 07.11.2012 by allowing the appeal, resumed and restored the land measuring 2 acres 20 guntas to the legal heirs of the grantee which is under challenge.
8. Learned counsel for the petitioner mainly argued on the only point that there was inordinate delay in filing the restoration application by the legal heirs of the grantee and the learned counsel argued that more than 37 years after the first alienation, the application came to be filed and even otherwise the Act came into force from 01.01.1979 and after 29 years of commencement of the Act, the restoration application came to be filed and the delay in filing the application has not been explained and therefore as per the judgment of the Hon’ble Apex Court in Nekkanti Rama Lakshmi’s case (supra). The order of restoration is liable to be set aside on the ground of delay and laches.
9. On perusal of the record, there is no dispute regarding land grant made to the grantee. Admittedly, the first sale took place on 13.08.1970 in favour of Chikka Muniyappa. Subsequently, the second sale was executed in favour of Bachappa on 20.10.1972. The PTCL Act came into force with effect from 01.01.1979. Admittedly, respondent Nos.3 to 10 filed the restoration application under Section 5 of the PTCL Act in the year 2007 i.e. almost 28 years after the commencement of the PTCL Act and 37 years of the first sale effected in the year 1970. Though the petitioner purchased the land in question measuring 2 acres 20 guntas as on 21.10.2008, subsequent to the dismissal of the application by the Assistant Commissioner, however, it is after the appeal period of three months. Though the learned counsel for the legal heirs of the grantee contended that the petitioners have no locus standi to challenge the order of the Deputy Commissioner, but on perusal of Annexure-D, the impugned order passed by the Deputy Commissioner reveals that the petitioner impleaded himself as respondent No.2 in the appeal proceedings, which was allowed by the Deputy Commissioner and his name was arrayed as respondent No.7. Therefore, the contention raised by respondent Nos.3 to 10 is not sustainable.
10. The only point that arises for consideration of this Court is whether the application filed by the legal heirs of the grantee is well within the time or there was any inordinate delay. In this regard, the Hon’ble Apex Court in Nekkanti Rama Lakshmi’s case (supra) has held at paragraph-8 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.”
11. The Hon’ble Apex Court also considered the delay judgment of Chhedi Lal Yadav’s case (supra). In the said case, there was delay of 24 years in filing the restoration application wherein the Assistant Commissioner and Deputy Commissioner allowed the same. The said orders were set aside by the Hon’ble Apex Court only on the ground of delay. In this case, admittedly the restoration application is filed by the legal heirs of the grantee in the year 2007 after 28 years of commencement of the Act and more than 37 years from the date of first sale which was held in the year 1970. The delay was not explained by respondent Nos.3 to 10. In view of the judgment of the Hon’ble Apex Court in Nekkanti Rama Lakshmi’s case (supra) and due to the inordinate delay and laches on the part of the legal representatives of grantee, the order passed by the Deputy Commissioner at Annexure-B is not sustainable in law and liable to be set aside. Therefore, the petition deserves to be allowed.
Accordingly, the petition is allowed. The order under challenge dated 07.11.2012 passed by the Deputy Commissioner is hereby set aside.
Sd/- JUDGE GBB/mv