IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.17610/2014 (SC/ST) BETWEEN:
Sri. Syed Nissar Ahmed, Aged about 62 years, S/o Late Sydu Sab, Lashkar Mohalla, Davanagere Town, Davanagere Taluk, Davanagere-577001. ... Petitioner (By Sri. Vishwajith Shetty S, Advocate) AND:
1. The Deputy Commissioner, Davanagere, Davanagere District-577001.
2. The Assistant Commissioner, Davanagere Sub-Division, Davanagere District-577001.
3. Sri. Kariyappa, S/o Rajappa, Aged about 45 years, R/at Chikkolikere village, Channagiri Taluk, Davanagere District-577001. ... Respondents (By Smt. Savithramma, HCGP for R1 & R2; R3 - served) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to call for the records from R-1 and R-2 which resulted in passing the order Annexure-A dated 17.01.2014 made by the R-1 and the order Annexure-B dated 05.01.2011 made by the R-2 and etc., This Writ Petition coming on for Preliminary Hearing in ‘B’ Group this day, the Court made the following:
ORDER Respondent No.3 is served and unrepresented.
2. The petitioner states that he has purchased an extent of 2 acres that was granted to one Nagappa, son of Kariyappa by a sale deed dated 27.03.1975, copy of the sale deed has been produced at Annexure-C. The petitioner states that the said extent of 2 acres is stated to have been granted to the original grantee by an order of grant on 22.04.1966.
3. It is stated that the son of grantee sought for resumption and restoration of the land by making an application before the Assistant Commissioner in the year 2009-2010. The Assistant Commissioner, by his order dated 05.01.2011, after having recorded the finding that the grantee belongs to Adi Karnataka, which is a Scheduled Caste, by relying on the Caste Certificate has allowed the application. The Assistant Commissioner has also recorded after perusal of the relevant records that the grant was made on 22.04.1966.
4. The Assistant Commissioner after taking note of the sale transaction at Annexure-C dated 27.03.1975, has allowed the application filed by the son of the grantee. The date of the sale deed is referred to wrongly as 24.05.1974, which is an error apparent in contrary to the records.
5. The said order of the Assistant Commissioner was taken up in appeal before the Deputy Commissioner, who affirms the finding of the Assistant Commissioner and dismisses the appeal.
6. The petitioner has assailed the orders and contends that the proceedings initiated in the year 2009-2010 as regards the sale deed dated 27.03.1975, is beyond a reasonable period of time and the Assistant Commissioner ought not to have entertained the proceedings.
7. It is further contended that as per the applicable Rules in force, the period of non-alienation was 15 years and if it is so that the sale deed was executed on 27.03.1975 within a period of non- alienation of 15 years, the cause of action to issue arose immediately thereafter, that is after the sale transaction on 27.03.1975 and hence, it is submitted that proceedings initiated in the year 2009-2010 is beyond a reasonable period of time.
8. The learned High Court Government Pleader states that there is no finding by the Assistant Commissioner or the Deputy Commissioner as regards the availing of statutory remedy beyond a reasonable period of time and hence, this Court ought not to entertain the petition and remand the matter back for re-consideration by the Assistant Commissioner.
9. As regards the contention of approaching the Authority beyond a reasonable period of time, the learned counsel for the petitioner points out that this Court by order dated 14.02.2019 passed in W.P.No.17609/2014 (SCST), while considering violation relating to a grant made on the same date by the same Authority has rejected the plea of the grantee and under similar facts, despite the contention not having been taken as regards approach of the Authority beyond a reasonable period of time and has granted relief to the purchaser and the same relief ought to be extended to the present case also. It is submitted that the petitioner in the W.P.No.17609/2014 and in the present case is the same.
10. After having heard learned counsel on both the sides, the observations made in W.P.No.17609/2014 (SCST) as regards the legal position as to whether the grantee or his representatives have approached the Assistant Commissioner beyond a reasonable period of time has been considered and the observations made are re-produced herein paragraph 5 for the purpose of convenience:
“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 Cheddi 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.”
11. In the facts of the present case, the sale transaction undisputedly was the sale deed dated 27.03.1975. Proceedings have been initiated before the Assistant Commissioner in the year 2009-2010. In light of the contention that the period of non-alienation was 15 years from the date of grant i.e., 22.04.1966, the right to sue as regards violation of term in the grant arose soon after the sale transaction i.e., immediately after 27.03.1975. Hence, the grantee’s son who is respondent No.3 ought to have approached the Assistant Commissioner seeking for relief soon after 27.03.1975. Having approached the Authority in the year 2009-2010, the delay in approaching the Authority is of a period of 35 years. The said period of delay would operate as a bar to entertain proceedings by the Assistant Commissioner.
12. The Apex Court, while laying down the law as regards such proceedings being initiated after a reasonable period of time has merely reiterated the existing law that proceedings ought to be initiated by the Authorities by exercising power within a reasonable period of time and the parties concerned are also required to take recourse to legal redressal within a reasonable period of time.
13. Taking note of the facts and circumstances of the case and delay in approaching the Assistant Commissioner for appropriate redressal, it would be appropriate to set aside the orders of the Assistant Commissioner and the Deputy Commissioner. At this point of time, no purpose would be served in remanding the matter back for consideration and appropriate finding to be recorded by the Assistant Commissioner, in light of the settled law by the Apex Court and in light of the undisputed facts as regards the date of grant, date of sale and the presentation of the petition before the Assistant Commissioner.
Accordingly, orders of the Assistant Commissioner and the Deputy Commissioner are set aside and the writ petition is allowed.
Sd/- JUDGE RB