IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.17609 OF 2014 (SCST) Between:
Sri. Syed Nissar Ahmed, Aged about 62 years, S/o Late Sydu Sab, Lashkar Mohalla, Davanagere Town, Davanagere Taluk, Davanagere – 577 002. ... Petitioner (By Sri. Vishwajith Shetty, Advocate) And:
1. The Deputy Commissioner, Davanagere, Davanagere District-577 002.
2. The Assistant Commissioner, Davanagere Sub-Division, Davanagere District – 577 002.
3. Sri. Shivamurthappa, S/o A. K. Nagappa, Major, R/at Chikkolikere Village, Channagiri Taluk, Davanagere District – 577 002. ... Respondents (By Smt. Savithramma, HCGP for R-1 and R-2; Smt. Saritha Kulkarni, Advocate for R-3) This petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the order Annexure-A dated 17.01.2014 made by the respondent No.1 and the order Annexure-B dated 08.11.2010 made by the respondent No.2 and etc.
This petition coming on for Preliminary Hearing in ‘B’ Group, this day, the Court made the following:
ORDER Petitioner claims to be the purchaser of land measuring two acres in Sy.No.91/8 is said to have been granted in Darkasth proceedings to one Shivamurthappa son of A. K. Nagappa by an order of grant dated 22.04.1966. Petitioner states that he has purchased the said property through a sale deed dated 07.11.1977 and thereafter, he has made improvements to the said land.
2. It is stated that the son of the original grantee has instituted the proceedings before the Assistant Commissioner in the year 2009-2010 in case No.PTCL.CR.20/2009-10 seeking for resumption and to set aside the sale deed and to restore the land to the grantees.
The Assistant Commissioner, by order dated 08.11.2010, has allowed the application holding that there was violation of Section 4(1) of Prohibition of Transfer of Certain Lands (P.T.C.L) Act, 1978 (hereinafter referred as ‘Act’ for short) and declaring that alienations made were illegal and directed for resumption and restoration of said land to the grantees family. The Assistant Commissioner has recorded the findings that the grantee belonged to Scheduled Caste; that the condition of non-alienation was fifteen years and that the sale deed executed in favour of the petitioner was within the said period of fifteen years during which period alienation could not have been made. Said order was taken up in appeal and the Deputy Commissioner, who by his order dated 17.01.2014, has upheld the order of the Assistant Commissioner. The petitioner has assailed the order primarily on the ground that petitioner was in continuous possession for more than thirty years and had perfected title by adverse possession. Learned counsel for the petitioner also contends that proceedings for resumption being initiated in the year 2009-10 is beyond the period of thirty years from the date of the transaction as well as beyond the period of thirty years of the Act coming into force.
3. It is also contended that right to set aside the said alienation starts immediately on violation of condition which would be in the year 1977 and hence, no action has been taken to invoke the remedy available under Section 4(1) of the Act within a reasonable period of time and that the Assistant Commissioner ought not to have entertained the proceedings.
4. The learned counsel for respondent No.3 contends that the question of considering unreasonable delay in initiating the proceedings to be a bar and invoking remedy under the Act cannot be accepted. No limitation to challenge the validity of transaction is provided for under the Act. It is also contended that the Act being a beneficial legislation, the object and spirit of the Act cannot be defeated by taking recourse to the technical contentions such as, reasonable time of invoking remedy to be a condition precedent for entertaining application by the Assistant Commissioner.
5. Having heard the learned counsel on both the sides it ought to be noticed that the Apex Court in its judgment in the case of Nekkanti Rama Lakshmi Vs. State of Karnataka and another in Civil Appeal No.1390/2009 (Dated 26.10.2017) has held by referring to the case in Chhedi lal Yadav and others Vs. Hari Kishore Yadav (D) Thr. Lrs & Ors, 2017 (6) Scale 459 that provisions of statute must be invoked within a reasonable time. Where an application was made for restoration after 24 years, the Court has held that such an application is to be construed to be application made after an unreasonably long period and liable to be dismissed on that ground itself. The Apex Court has also considered the said aspect in the judgment in Vivek M.Hinduja and others Vs. M.Ashwatha and others in Civil Appeal No.2166/2009 (Dated 06.12.2017) and has observed that proceedings cannot be initiated when the aggrieved party approaches beyond the reasonable time and the Court has stated that where no limitation as such is prescribed under the Act, parties are required to approach the Authority within a reasonable period of time.
6. In the facts of the present case, the sale transaction is said to have been made on 07.11.1977, Act proceedings were initiated before the Assistant Commissioner only in the year 2009-10 which clearly indicates that the proceedings are initiated beyond 32 years after the sale transaction. The question is as to whether the proceedings initiated after such a long period of time could have been entertained is an aspect that requires to be considered, though the said contention does not appear to have been raised or considered by the Deputy Commissioner or the Assistant Commissioner. This is in light of the fact that action initiated after an unreasonable time would operate as a jurisdictional bar in light of the law laid down by the Apex Court.
7. Facts being undisputed i.e., factum of sale on 07.11.1977 as well as institution of proceedings in the year 2009-10, following the judgment of Apex Court referred to above, without entering into the merits of the other contentions raised, it could be said that after the sale transaction, proceedings are initiated beyond a reasonable period of time and the present facts indicate that proceedings have been initiated more than 32 years after the sale transaction and 30 years after the Act has come into force. Such a claim could not have been entertained by the Assistant Commissioner.
8. Hence, on these grounds itself observing that no purpose would be served in remanding the matter, taking note of the law laid down by the Apex Court, the order of the Deputy Commissioner and Assistant Commissioner are set aside.
Accordingly, petition is allowed.
Sd/- JUDGE SN/-