IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN WRIT PETITION No.24688 of 2012 (SC-ST) BETWEEN SRI PUTTARAJAPPA G.L., S/O LATE SRI LINGE GOWDA, AGED ABOUT 72 YEARS, RESIDENT AT HAVALA VILLAGE, KASABA HOBLI, TURUVEKERE TALUK, TUMKUR DISTRICT.
(BY SRI K.M. SOMASHEKAR, ADVOCATE FOR SRI C.R. GOPALASWAMY, ADVOCATE) AND 1. THE ASSISTANT COMMISSIONER, TIPTUR SUB DIVISION, TIPTUR.
2. THE DEPUTY COMMISSIONER, TUMKUR DISTRICT, TUMKUR.
3. SMT. CHIKKAYELLAMMA, W/O NARASIMHAIAH, SINCE DEAD, BY HER L.Rs.
...PETITIONER a) SRI SANNAIAH, S/O NARASIMHAIAH, AGED ABOUT 62 YEARS, b) SRI SHIVAMMA, W/O RAMAPPA, AGED ABOUT 58 YEARS, c) SRI LAKSHMANA, S/O CHIKKAYELLAMMA, AGED ABOUT 56 YEARS, RESPONDENTS No.3(a) TO (c) ARE RESIDENT OF CHIKKA TURUVEKERE VILLAGE, TURUVEKERE TALUK, TUMKUR DISTRICT.
(BY SMT. SAVITHRAMMA, HCGP for R1 & R2; SMT. SUMITHRA G.M., ADVOCATE for R3(c); R3(a) - SERVED;
R3(b) – NOTICE HELD SUFFICIENT VIDE ORDER DATED 06.09.2012.) … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDERS DATED 20.12.2004 PASSED BY THE FIRST RESPONDENT VIDE CASE PTCL.SR.03 of 2004-2005 AND THE ORDER PASSED BY THE SECOND RESPONDENT DATED 12.12.2011 VIDE CASE No.PTCL 29 of 2004-2005 CANCELLING THE SALE MADE IN FAVOUR OF THE PETITIONER AND RESUMING THE LAND IN FAVOUR OF THE THIRD RESPONDENT VIDE ANNEXURES-A & B.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER The petitioner has filed this petition challenging the order of resumption and restoration dated 20.12.2014 passed in PTCL SR 3/2004-05 by respondent No.1- Assistant Commissioner, Tiptur and the order dated 12.12.2011 passed in PTCL 29/2004-05 by respondent No.2-Deputy Commissioner, Tumkur.
2. I have heard learned counsel for the petitioner and learned High Court Government Pleader appearing for respondent Nos.1 and 2 as well as learned counsel for respondent No.3(c).
3. The original grantee Masiyappa, who is the grandfather of deceased respondent No.3, got the land by grant measuring 2 acres 4 guntas in Sy.No.166/1 situated at Guddenahalli village, Kasaba Holbi, Turuvekere Taluk, vide grant order dated 01.04.1944. Subsequently, the entire land in the said survey number has been sold to one Doddayellaiah, on 17.07.1964 and thereafter, on 07.01.1966, the said Doddayellaiah sold the land to one Revanna, who in turn sold the said land to one Nanjundappa on 01.12.1978. Thereafter, on 09.09.1997, the present petitioner had purchased the property from Nanjundappa and since then he is in possession and enjoyment of the property. The grand-daughter of the original grantee i.e. respondent No.3-Chikkayellamma filed resumption application under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 ( ‘PTCL Act’ for short) on 08.12.2003 before the Assistant Commissioner. After making enquiry and issuing notice to the applicant, the Assistant Commissioner set aside all the sale deeds as void as the same is hit by Section 4 of the PTCL Act and passed an order of resumption by restoring the land in favour of respondent No.3. Being aggrieved by the order passed by the Assistant Commissioner, the petitioner filed an appeal under Section 5A of the PTCL Act before the Deputy Commissioner, Tumkur. After hearing the arguments of the parties, the Deputy Commissioner also confirmed the order of the Assistant Commissioner by dismissing the appeal. Assailing the orders passed by the Courts below, the petitioner is before this Court.
4. Learned counsel for the petitioner contended that though the PTCL Act came into force on 01.01.1979, the land in question was granted in the year 1944 and there were three sale deeds executed by the grantee and the subsequent purchaser to the vendor’s vendor of the petitioner prior to the commencement of the PTCL Act. The fact remains that the sale deed of the petitioner came to be executed on 09.09.1997 and the application was filed by respondent No.3 nearly 24 years 11 months after the commencement of the Act, as such there was inordinate and unreasonable delay in filing the application. Both the Court below have committed error in accepting the application and restoring the land. Learned counsel also relied upon the judgment of a co-ordinate Bench of this Court in WP Nos.43848-849/2012, disposed of on 30.01.2019, another judgment in WP No.12848/2018, disposed of on 13.12.2018 and the judgment of a Division Bench of this Court in WA No.383/2019, disposed of on 03.06.2019 and prayed for allowing the petition by setting aside the order of resumption passed by the Courts below.
5. Per contra, Smt. Sumithra, learned counsel for respondent No.3 (c) contended that the sale deed of the petitioner was executed on 09.09.1997 after the commencement of the Act. As per Sections 4(1) and (2) of the PTCL Act, permission for alienation is mandatory and as per the record, there is no permission obtained by the parties before alienating the suit property. Further, as per the order of the Assistant Commissioner, there is complete ban for alienating the property. Such being the case, the orders passed by the Assistant Commissioner and the Deputy Commissioner are in accordance with law and as per the land grant rules. Therefore, there is no error or illegality committed by the Courts below to interfere with the impugned orders and prayed for dismissal of the petition. Learned counsel also relied upon the judgment of the Hon’ble Apex Court in the case of Satyan vs. Deputy Commissioner and others reported in 2019(1) Kar. L.R 841 (SC).
6. Smt. Savithramma, learned High Court Government Pleader also supported the impugned orders passed by the Courts below and contended that the condition prescribed under the land grant certificate was forever and there is complete ban for alienating the property. Such being the case, the orders passed by the Courts below need not be interfered with and hence, prayed for dismissal of the petition.
7. Upon hearing the rival contentions of learned counsel on both side and on perusal of the records, it is clear that the land in Sy.No.161/1, measuring 2 acres 4 guntas has been granted to the grandfather of respondent No.3 namely, Masiyappa on 01.04.1944. As per the order of the Assistant Commissioner, at paragraph No.3, the grantee is said to have executed a bond by undertaking not to alienate the property. It is also an admitted fact that the said grantee executed sale deed on 17.07.1961 in favour of Doddayellaiah. Subsequently, on 07.01.1966, the said Doddayellaiah sold the property to one Ravanna and thereafter, the said Revanna sold the property to the vendor of the petitioner namely, Nanjundappa. All these three sale deeds were executed and property was alienated prior to the commencement of the PTCL Act, which came into force on 01.1.1979. However, the fourth sale by which the petitioner purchased the property is on 09.09.1997. Subsequently, the grand-daughter of the original grantee i.e. respondent No.3 filed an application under Section 5 of the PTCL Act on 08.12.2003 and after making the enquiry, the Assistant Commissioner set aside all the four sale deeds and resumed the property in favour of respondent No.3 under Annexure-A, on 20.12.2004. The same was confirmed by the Deputy Commissioner by order dated 12.12.2011. Admittedly, the PTCL Act came into force on 01.01.1979 and it is also an admitted fact that the land granted falls under the category of ‘Granted Land’ under Section 3(1)(b) of the PTCL Act. However, Section 4(1) of the PTCL Act prohibits alienation of the property before or commencement of the Act without prior permission of the government. Section 4(2) of the PTCL Act prohibits alienation of the property without previous permission of the government after commencement of the Act. The Hon’ble Apex Court in Satyan’s case (supra) has dealt with a similar situation elaborately at paragraphs 31, 32 and 33. The Hon’ble Apex Court has also discussed with respect to the judgment of this Court in case of Manchegowda and others vs. State of Karnataka and others [(1984) 3 SCC 301] at paragraph 24. The said judgment has been discussed by the Hon’ble Apex Court at paragraphs 9 & 10 of the judgment (page Nos.848 and 849) wherein, it has been held as under;
“ 9. Learned counsel sought to draw strength from the observations of this Court in Manchegowda & Ors. v. State of Karnataka & Ors., more specifically para 24. The said case dealt with a constitutional challenge laid to Sections 4 and 5 of the said Act. The challenge was repelled. As to the nature of controversy examined by the Court, it would be apposite to reproduce para 7 of the said judgment, which reads as under:
"7. The validity of the Act has been challenged mainly because of the provisions contained in Sections 4 and 5 of the Act which purport to declare transfers of "granted land" made either before or after the commencement of the Act in contravention of the terms of the grant of such land or the law providing for such grant null and void and confer powers on the authority to take possession of such land after evicting all persons in possession thereof and to restore such lands to the original grantee or his legal heirs and where it is not reasonably practicable to so restore the land to a person belonging to the Scheduled Castes or Scheduled Tribes in accordance with the rules relating to the grant of such land. It may be noted that the validity of the Act insofar as it imposes prohibition on transfer of granted land after the commencement of the Act has not been challenged and the principal objection to the validity of the Act is taken because of the provisions in the Act seeking to nullify the transfers of granted lands effected before the commencement of the Act."
10. The aforesaid would, thus, show that the real controversy arose on account of the provisions of the said Act being made applicable even to grants made prior to the commencement of the Act. It is in this context that the Court observed in para 24 as under:
"24. Though we have come to the conclusion that the Act is valid, yet, in our opinion, we have to make certain aspects clear. Granted lands which had been transferred after the expiry of the period of prohibition do not come within the purview of the Act, and cannot be proceeded against under the provisions of this Act. The provisions of the Act make this position clear, as Sections 4 and 5 become applicable only when granted lands are transferred in breach of the condition relating to prohibition on transfer of such granted lands.
Granted lands transferred before the commencement of the Act and not in contravention of prohibition on transfer are clearly beyond the scope and purview of the present Act. Also in case where granted lands had been transferred before the commencement of the Act in violation of the condition regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, such granted lands would also not come within the purview of the present Act, as the title of such transferees to the granted lands has been perfected before the commencement of the Act.
Since at the date of the commencement of the Act the title of such transferees had ceased to be voidable by reason of acquisition of prescriptive rights on account of long and continued user for the requisite period, the title of such transferees could not be rendered void by virtue of the provisions of the Act without violating the constitutional guarantee.
We must, therefore, read down the provisions of the Act by holding that the Act will apply to transfers of granted lands made in breach of the condition imposing prohibition on transfer of granted lands only in those cases where the title acquired by the transferee was still voidable at the date of the commencement of the Act and had not lost its defeasible character at the date when the Act came into force.
Transferees of granted lands having a perfected and not a voidable title at the commencement of the Act must be held to be outside the pale of the provisions of the Act. Section 4 of the Act must be so construed as not to have the effect of rendering void the title of any transferee which was not voidable at the date of the commencement of the Act."
8. Admittedly, in the case on hand, the land in question has been sold by the original grantee prior to the commencement of the PTCL Act. The first sale took place in the year 1961, 17 years after the grant and the second sale 20 years after the grant, the application was filed in 2003 after 42 years of the first sale, second sale was in 1966 after 5 years of the first sale and the third sale was in the year 1997. The Act came into force on 01.01.1979. The application for resumption has been filed by respondent No.3 on 08.12.2003 nearly 25 years 11 months after the date of commencement of the Act and after 42 years of the first sale. In this regard, the Hon’ble Apex Court in the case of Amrendera Pratap Singh vs. Tej Bahadur Prajapati and others reported in (2004) 10 SCC 65, has not disturbed the sale deeds executed and the application filed after the inordinate delay of more than 20 years. The Division Bench of this Court in WA No.833/2019 dated 03.06.2019 dismissed the writ petition filed by the legal heirs of the grantee wherein the restoration application was filed almost more than 40 years after its alienation. A co-ordinate Bench of this Court in WP Nos.43848-43849/2012 and WP No.12848/2018 has relied upon various judgments of this Court and in WP No.12848/2018, at paragraph 5 it has been held as under:
“5. However, without recording findings as regards the contention of the petitioner relying on the law laid down in ILR 2004 KAR 3298 in the case of Mariyappa Vs. Dr.N.Thimmarayappa and others and in view of the judgment of Apex Court in the case of Vivek M.Hinduja and others Vs. M.Ashwatha and others referred to (supra) and also judgment in Nekkanti Rama Lakshmi Vs. State of Karnataka and another referred to (supra), where the Apex Court at para No.8 has held, after referring to the Judgment in Chhedi lal Yadav and others Vs. Hari Kishore Yadav (D) Thr. Lrs & Ors, 2017 (6) Scale 459, that provisions of the statute must be invoked within a reasonable time. The Apex Court in the facts of the said case 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 Vs. 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 were a beneficiary had to approach the competent authority within a reasonable time, beyond which relief would not be granted.”
In view of the judgments of the Hon’ble Apex Court as well as the judgments of this Court, if in case of any inordinate delay in filing the restoration application, the order of resumption passed by the respondents were set aside by this Court. In this case, the application is filed by respondent No.3 admittedly after 24 years 11 months from the date of commencement of the Act. Though the Assistant Commissioner stated in its order that there is a complete ban for alienation of the property, but there is no document secured and produced before the Court to show that such a bar was imposed by the authorities while granting the land in question. As per the land grant rules, the ban is for only 15 years and all these three sale deeds were effected prior to the commencement of the Act. Therefore, the contention of learned counsel for respondent No.3 as well as learned High Court Government Pleader cannot be acceptable due to delay of 24 years in filing resumption application. I find that the order of restoration passed by both the respondent Nos.2 & 3 are liable to be set aside on the ground of unreasonable delay in filing the application by respondent No.3 for restoration.
Accordingly, the writ petitions are allowed. The orders of resumption and restoration dated 20.12.2014 passed in PTCL SR 3/2004-05 by respondent No.1- Assistant Commissioner, Tiptur and the order dated 12.12.2011 passed in PTCL 29/2004-05 by respondent No.2-Deputy Commissioner, Tumkur, vide Annexures-A and B respectively are set aside.
Sd/- JUDGE mv