IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN WRIT PETITION No.23002 of 2017 (SC/ST) BETWEEN SRI N.P. AJJANNA S/O. NARASAPPA, AGED ABOUT 78 YEARS, AGRICULTURIST, RESIDENT OF PAGADALABANDE VILLAGE, PARASHURAMPURA HOBLI, CHALLAKERE TALUK, CHITRADURGA DISTRICT – 577 524.
(BY SRI HARISH N.R., ADVOCATE for SRI SIDDAPPA B.M., ADVOCATE) AND 1. THE DEPUTY COMMISSIONER, CHITRADURGA DISTRICT, CHITRADURGA – 577 501.
2. THE ASSISTANT COMMISSIONER CHITHRADURGA SUB-DIVISION, CHITRADURGA – 577 501.
3. SMT. SHARADAMMA W/O. HANUMANTHAIAH, AGED ABOUT 50 YEARS, JAJUR VILLAGE, PARASHURAMPURA HOBLI, CHALLAKERE TALUK, CHITRADURGA DISTRICT – 577 524.
…PETITIONER … RESPONDENTS (BY SMT. SAVITHRAMMA, HCGP for R1 and R2; NOTICE TO R3 IS HELD SUFFICIENT.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED BY THE R2 IN CASE No.SCPTL/CLK/11/2004-2005 DATED 08.06.2007 AT ANNEXURE-A AND THE ORDER PASSED BY R1 IN CASE No.SCPTL(A)20/2007-2008 DATED 22.03.2017 AT ANNEXURE-C TO WRIT PETITION.
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 petitioner being aggrieved by the order dated 22.03.2017 passed by the Deputy Commissioner, Chitradurga confirming the order of resumption and restoration dated 08.06.2007 passed by the Assistant Commissioner, Chitradurga.
2. Heard the argument of learned counsel for the petitioner and learned High Court Government Pleader appearing for respondent Nos.1 and 2. Respondent No.3 though served remained unrepresented.
3. The case of the petitioner is that the land in Sy.No.64/38 (New Sy.No.83) measuring 10 acres of land situated at Jajur Kaval village, Chellakere Taluk, Chitradurga District has been granted to one Maduraiah by way of free grant as per darkast. Thereafter, the said Maduraiah and his younger brother Durgappa divided the land equally by 5 acres each. Subsequently, the said Durgappa died leaving behind his son Hanumaiah. The said Hanumaiah sold 5 acres of land to the petitioner Ajjanna vide sale deed dated 20.05.1989. Subsequently, the wife of Hanumaiah namely, Sharadamma filed an application for resumption and restoration of land before the Assistant Commissioner, Chitradurga under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (‘PTCL Act’ for short) which came into effect from 01.01.1979, and the Assistant Commissioner by order dated 08.06.2007 allowed the application and restored the land in favour of the legal heirs of the grantee. Being aggrieved by the same, the purchaser, who is the present petitioner filed an appeal before the Deputy Commissioner, Chitradurga, and the Deputy Commissioner vide order dated 22.03.2017 dismissed the appeal and confirmed the order of the Assistant Commissioner. Being aggrieved by the same, the purchaser is before this Court by way of this writ petition.
4. Sri Harish N.R., learned counsel appearing on behalf of Sri Siddappa B.M., learned counsel for the petitioner, challenged the orders of the Deputy Commissioner and the Assistant Commissioner only on the point of delay and latches on the part of the legal heirs of the grantee in filing the restoration application after 15 years of non-alienation date. In support of his argument, learned counsel for the petitioner relied upon the judgment of 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)] and Vivek M. Hinduja and others vs. M.Ashwatha and others reported in 2018 (1) Kar. L.R 176 (SC) and also the decision of the Division Bench of this Court in the case of Smt. Ningamma vs. The Tibetian Children’s Village, Himachal Pradesh and others in WA No.4092/2017, decided on 09.04.2019. Hence, prayed for allowing the petition.
5. Per contra, learned High Court Government Pleader strenuously contended that though the land has been granted in favour of Maduraiah in the year 1928-29, but no sale has been effected till the commencement of the Act in the year 1979 and the sale itself was effected only after the commencement of the Act. As per Section 4(2) of the PTCL Act, any sale or transfer, subsequent to the commencement of the PTCL Act, without permission of the government, is void. Whereas the sale was only in the year 1989. The application filed by the legal heirs is in the year 2004. Just 15 years of delay which cannot be considered as inordinate delay on the part of the legal heirs of the grantee in filing the application. Therefore, prayed for dismissal of the petition.
6. Upon hearing the argument of learned counsel for the petitioner as well as learned High Court Government Pleader, the short question that arises for consideration of this Court is “whether the orders under challenge passed by the authorities are sustainable in view of delay of 15 years in filing the restoration application by the legal heirs of the grantee?”
7. On perusal of the record, it is the admitted fact that the land in question has been granted to one Maduraiah in the year 1928-1929. It is also not in dispute that the said Maduraiah gave 5 acres of land to his younger brother Durgappa. Subsequently, Durgappa is said to have died long back leaving behind his only son Hanumaiah. Thereafter, the said Hanumaiah was in possession and enjoyment of 5 acres of land. On 20.05.1989, the said Hanumaiah sold 5 acre of land to the petitioner. The wife of the said Hanumaiah filed restoration application under Section 5 of the PTCL Act before the Assistant Commissioner in the year 2004. Admittedly, the Assistant Commissioner restored the land and the Deputy Commissioner also confirmed the same, which is under challenge.
8. The contention of learned counsel for the petitioner is that there was more than 15 years of delay on the part of the legal heirs of the grantee in filing the restoration application and in support of his contention, he has relied upon the judgment of the Hon’ble Apex Court and the Division Bench of this Court.
9. Though learned High Court Government Pleader contend that the very sale has been effected in the year 1989 after commencement of the PTCL Act, but as per Section 4(2) of the PTCL Act, the granted land, if it is transferred without the permission of the government, the sale is void. Admittedly, the first sale took place in the year 1989 and after commencement of the PTCL Act, 1978, which came into effect from 01.01.1979. Therefore, there is a clear violation of the provisions of Section 4(2) of the PTCL Act. The permission of the government is mandatory for alienating the granted land after commencement of the PTCL Act. There is no dispute in this regard. However there is delay in filing the restoration application. The Hon’ble Apex Court in the case of Nekkanti Rama Lakshmi (supra) at paragraph 8 has held as under:
“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.”
10. In another case in Vivek M. Hinduja (supra), the Hon’ble Apex Court has held that though there is no period of limitation prescribed under the Act, but the legal heirs of the grantee or the grantee shall have to make an application before the authorities within the reasonable time and in case of delay of 20 to 25 years, the order of restoration cannot be sustained. Based on the judgment of the Hon’ble Apex Court in the case of Vivek M. Hinduja (supra), the Division Bench of this Court in WA No.4092/2017 has upheld the order of the learned Single Judge setting aside the restoration order passed by the authorities, wherein in the said case, there was a delay of 12 years. The land in question in the said case has been granted in the year 1978. Saguvali chit was also issued in the year 1978. The sale was effected in the year 1994. The application came to be filed after 12 years of the sale. The Division Bench of this Court has held that even 12 years of delay in initiating action is also inordinate delay on the part of the legal heirs of the grantee. Therefore, the order of the restoration is not sustainable in view of the judgment of the Hon’ble Apex Court and the judgment of the Division Bench of this Court in the case of Ningamma (supra). In this case admittedly the application came to be filed in the year 2004. The sale was effected in the year 1989. The sale is hit by Section 4(2) of the PTCL Act. But in view of the delay of 15 years in filing the restoration application by the legal heirs of grantee and the delay is not explained. Hence, the order under challenge passed by the authorities are not sustainable. Hence, the same are liable to be set aside.
11. Accordingly, the petition is allowed. The order dated 22.03.2017, No.SCPTL(A)-20/2007-2008, Annexure-C passed by the Deputy Commissioner and the order 08.06.2007 No.SCPTL/CLK/11/2004-2005, Annexure-A passed by the Assistant Commissioner are set aside.
SD/- JUDGE mv