IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No.31117 OF 2019 (SC/ST) Between:
1. Sri. Narayanaswamy Aged about 34 years S/o Late Sri. Muniyappa 2. Smt. Sakamma Aged about 70 years D/o. Late Thimmappa Both the Petitioners are resident of Hosahalli Village Jala Hobli Bangalore North Taluk-572 157 Bangalore District. …Petitioners (By Sri. Suresh Babu.B.N., Advocate) And:
1. The District Commissioner Bangalore Urban District Kandaya Bhavan, K.G. Road Bangalore-560 009.
2. The Assistant Commissioner Bangalore North Sub-Division Kandaya Bhavan, K.G. Road Bangalore-560 009.
3. Sri K.M. Naveen S/o. Sri K.N. Manjunath Aged about 33 years Residing at No.2152/16, Water Tank Road D Block, Near Corporation Bank Branch Sahakara Nagar Bangalore-560 092.
4. Sri Ramanna S/o Late Sri. Thimmanna Aged about 78 years 5. Sri Munivenkataswamy S/o. Late Sri. Thimmanna Aged about 65 years Respondent Nos. 4 and 5 are Resident of Hoshalli Village Jala Hobli Bangalore North Taluk-572 157 Bangalore District.
Respondent No.4 and 5 are Represented by registered GPA Holder Sri K.M. Chethan S/o. K.N. Manjunath Aged about 34 years Residing at No.2152/16 Water Tank Road, D Block Near Corporation Bank Branch Sahakara Nagar Bangalore-560 092. …Respondents (By Sri. Chetan.B., Advocate for C/R3 to R5; Smt. Savithramma, HCGP for R1 & R2) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to issue a writ of certiorari or any other writ to quash the Order dated 14.11.2018 in P.T.C.L.
No.67/2018 passed by the respondent No.1 herein as per Annexure-A and etc.
This Writ Petition coming on for Preliminary Hearing this day, the Court made the following:
O R D E R Since the matter is posted for preliminary hearing, with the consent of both the parties, it is heard finally.
2. In this writ petition, the petitioners are challenging the order dated 14.11.2018 passed by the Deputy Commissioner vide Annexure-‘A’.
3. The brief facts of the case are that the land bearing Sy.No.151 (old No.21) measuring 4 acres 9 guntas situated at Hosahalli Village, Jala Hobli, formerly Devanahalli Taluk, now in Bengaluru Additional Taluk was granted in favour of Sri Thimmappa @ Thimmaiah. The original grantee Sri Thimmappa sold the granted land measuring 2 acres 4.8 guntas by a registered sale deed dated 29.03.1966 in favour of Sri Thimmarayappa. Remaining 2 acres 4.8 guntas was sold by a registered sale deed dated 12.01.1972 in favour of Munithayappa. The Karnataka Scheduled Caste and Schedule Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short ‘Act’) came into force on 01.01.1979. In the year 2007, the petitioner filed an application under Section 5(A) of the said Act for restoration of granted land in favour of legal representatives of the original grantee. The second respondent vide order dated 10.10.2008 has rejected the application filed by the petitioners for restoration of granted land. Being aggrieved by the same, the petitioner has filed an appeal before the Deputy Commissioner. On 16.06.2014, the petitioners have withdrawn the appeal filed before the Deputy Commissioner. In the year 2015, the legal representatives of the original grantee, for the second time, filed an application under Section 5(A) of the Act for restoration of granted land. Respondent No.2-The Assistant Commissioner by order dated 28.09.2015 has allowed the application filed by the petitioners. Being aggrieved by the same, respondent Nos. 3 to 5 who are purchasers of the said land have filed an appeal before the Deputy Commissioner. The Deputy Commissioner by an order dated 14.11.2018 has allowed the appeal. Being aggrieved by the same, the petitioners have filed this writ petition.
4. Sri Suresh Babu.B.N., learned counsel for the petitioners submit that the land was originally granted in favour of Thimmappa on 24.09.1941. At the time of granting the land, the authority has put a condition that the grantee shall not sell the land forever. By violating the condition, the land measuring 2 acres 4.8 guntas was sold in favour of Sri Thimmarayappa by registered sale deed dated 29.03.1966 and remaining 2 acres 4.8 guntas was sold in favour of Sri Munithayappa through a registered sale deed dated 12.01.1972. Immediately, after the said act came into force, petitioners have filed an application under Section 5 of the said Act. After following the due process of law, respondent No.2- the Assistant Commissioner has rightly allowed the petition filed by the petitioners and restored the land in their favour. The Deputy Commissioner, contrary to the provisions of the said Act has passed an order by allowing the appeal filed by Thimmappa. Hence, he sought for allowing the writ petition.
5. Per contra, the learned counsel appearing for respondents/caveator Nos.3 to 5 submits that the first sale was taken place on 29.03.1966 and then another portion of property was sold on 12.01.1972. The said Act came into force on 01.01.1979. The application was filed under Section 5 of the said Act in the year 2007. There is a delay of 28 years in invoking the provisions of Section 5 of the Act. He relies on the judgment passed by the Hon’ble Apex Court in the case of Nikkanti Rama Laxmi V/s State of Karnataka reported in 2018(1) Kar.L.R. 5 (SC) and also relied on the judgment of the Division Bench of this Court passed in WA.Nos.372- 375/2019. Secondly, he has contended that the earlier application filed by the petitioners before the Assistant Commissioner was dismissed. For the second time, the petitioners have filed an application before respondent No.2- The Assistant Commissioner. The second application filed by the petitioners itself is not maintainable. The Assistant Commissioner without authority of law has entertain the second application.
6. Smt. Savithramma, learned HCGP for respondent Nos.
1 and 2 submitted that the granted land was sold violating the grant conditions. Hence, the authorities have rightly allowed the application under Section 5 of the said Act.
7. Heard the learned counsel for the parties.
8. It is not in dispute that land bearing Sy.No.151 (old No.21) measuring 4 acres 9 guntas situated at Hosahalli Village, Jala Hobli, formerly Devanahalli Taluk, now in Bengaluru Additional Taluk was granted in favour of Sri Thimmappa by Grant Order dated 24.09.1941. The original grantee Sri Thimmappa has sold the land measuring 2 acres 4.8 guntas in favour of Thimmarayappa on 29.03.1966 and the remaining portion of property was sold in favour of Sri Munithayappa on 12.01.1972. The said Act came into force on 01.01.1979. The application filed by the petitioners was in the year 2007. There is a delay in invoking the provisions of Section 5 of the said Act.
9. Hon’ble Apex Court in the case of Nikkanti Rama Laxmi (stated supra) has held that:
“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.3131/2007, 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.”
and in the case of Vivek M. Hinduja V/s Ashwatha & Others reported in 2018 Kar.L.R 176 has held that the provisions under Section 5 of the said Act has to be invoked within a reasonable time. In the case on hand, the application for restoration has been filed after a lapse of 28 years. There is an unreasonable delay in invoking the provisions of Section of 5 of the said Act. In view of the above, the order passed by the Assistant Commissioner is unsustainable. The Deputy Commissioner has rightly allowed the appeal filed by the Sri Thimmppa, purchaser.
Hence, the writ petition is devoid of merits. Accordingly, it is dismissed.
Sd/-
JUDGE SSD