IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 1ST DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL NO.2952 OF 2012 (SC/ST) BETWEEN:
SRI. VENKATASWAMY BOVI SON OF VENKATAPPA AGED ABOUT 80 YEARS RESIDING AT ADOOR PALYA KASABA HOBLI ANEKAL TALUK. … APPELLANT (BY SRI. H MAREGOWDA, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY REVENUE DEPARTMENT M.S.BUILDING BENGALURU -560 001.
2. THE SPECIAL DEPUTY COMMISSIONER BENGALURU DISTRICT BENGALURU.
3. THE ASSISTANT COMMISSIONER BENGALURU SOUTH SUB-DIVISION BENGALURU.
4. SRI. RAMADASAPPA @ RAMADASA SON OF MUNIYAPPA MAJOR RESIDING AT MEDIHALLI VILLAGE KASABA HOBLI ANEKAL TALUK.
5. SRI. M.RAVI SON OF LATE MUNIYAPPA MAJOR RESIDING AT HARAGADDE VILLAGE JIGNI HOBLI ANEKAL TALUK. ... RESPONDENTS (BY SRI.S S MAHENDRA, AGA FOR RESPONDENT No.1 TO 3 SRI.V.VISHWANATHA AND SRI M.K.SHIVARAJU, ADVOCATES FOR RESPONDENT No.4 RESPONDENT No.5 IS SERVED AND UNREPRESENTED) (MS.MAITREYI KRISHNAN APPOINTED AS AMICUS CURIAE VIDE ORDER DATED 15.02.2019) THIS APPEAL FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.15631/2009 (SC/ST) DATED 15.03.2012.
THIS APPEAL COMING ON FOR HEARING THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 15.03.2012 passed by the learned Single Judge in W.P.No.15631 of 2009, by which the petition was rejected, the writ petitioner is in appeal.
2. The petitioner filed the instant writ petition under Articles 226 and 227 of the Constitution of India praying to quash the order dated 24.03.2009 passed by the 2nd respondent – the Special Deputy Commissioner. It is stated that one Channaraya Bovi was granted 2 acres 7 guntas of land in Survey Number 68 of A Medahalli Village in 1946-1947. The said survey number was part of old Survey Number 35 of A Medahalli Village and the land was granted free of cost. The petitioner claims that the said grantee Sri. Channaraya Bovi is his paternal uncle. The grantee Sri. Channaraya Bovi sold the land under registered sale deed dated 04.01.1957 to one Sri.
Thimmarayappa, who in turn sold the said property to one Smt. Savithramma. Smt. Savithramma sold the land in question to one Sri. Nanjappa under registered sale deed dated 08.04.1959. The sons of Nanjappa sold the land in question under registered sale deed dated 22.10.1983 in favour of one Sri. Venkatashamappa. The petitioner who claims to be the only legal representative of Sri. Channaraya Bovi, filed application for resumption of the land by making application dated 14.02.2006. In the meanwhile, the respondent No.4, who claims to be a tenant filed Form No.7 in respect of the land in question and occupancy right was granted in his favour. The 3rd respondent – the Assistant Commissioner by his order dated 20.09.2006 held that the land was granted in favour of the scheduled caste person and the sale made is in violation of the provisions of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (for short ‘the PTCL Act’). Aggrieved by the same, the 4th respondent one Sri Ramadasappa filed appeal before the 2nd respondent – the Special Deputy Commissioner. The 2nd respondent by order dated 24.03.2009 allowed the appeal and set aside the order passed by the 3rd respondent – the Assistant Commissioner. The 2nd respondent during the course of his order has come to the conclusion that there is no material to indicate the grant of land, in respect of the land in question, since the occupancy right is granted under the Karnataka Land Reforms Act, 1961 and therefore, the provisions of the PTCL Act would have no application. Aggrieved by the order of the 2nd respondent, the petitioner filed instant writ petition praying to set aside the order of the 2nd respondent. The learned Single Judge held that when there is no records to indicate the grant, the 3rd respondent could not have recorded that there was grant and the terms of the grant are violated. Further the learned Single Judge was of the opinion, that there is no document to indicate that original grantee is the paternal uncle of the petitioner, thus dismissed the writ petition.
Aggrieved by the order of the learned Single Judge the petitioner is in appeal.
3. Heard the learned counsel for the appellant and learned counsel for the respondents. This Court by order dated 15.02.2019 appointed Ms. Maitreyi Krishnan, as Amicus Curiae to assist the Court. We have also heard the Amicus Curiae and perused the appeal papers.
4. Learned counsel for the appellant would submit that the order of the learned Single Judge is patently erroneous since the learned Single Judge failed to consider the mutation entry, which indicated that the land in question was granted to the paternal uncle of the petitioner. The learned Single Judge lost sight of the fact that the first sale transaction was within the prohibited period of non- alienation clause and hit by the provisions of the PTCL Act.
5. Per contra, learned counsel for the respondents supports the order of the learned Single Judge and prays for dismissal of the appeal. It is also contended that there is inordinate delay of nearly 45 years in initiating the proceedings under the PTCL Act, therefore, on the ground of delay and laches itself the writ petition was liable to be rejected.
6. Heard Ms. Maitreyi Krishnan, Amicus Curiea, who brought to our notice the relevant provisions of the PTCL Act and also the latest decisions in the matter.
7. On hearing learned counsels for the parties, Amicus Curiae and on perusal of the appeal papers, we are of the view, that the learned Single Judge has passed a well reasoned order which would not suffer from any perversity or erroneousness so as to warrant interference. The petitioner claims that the original grantee is his paternal uncle, who was granted the land in question in the year 1945-1946 free of cost. The first sale transaction has taken place on 04.01.1957 between the grantee and one Sri Thimmarayappa. The petitioner initiated proceedings for resumption of the land in question only in the year 2006. There is inordinate delay on the part of the petitioner in initiating proceedings under the PTCL Act. Moreover, the petitioner has not produced any documents to show that the original grantee Sri Channaraya Bovi is his paternal uncle. The Hon'ble Supreme Court while dealing with a case arising under the PTCL Act has in the case of MR.VIVEK M HINDUJA AND OTHERS Vs.
MR.M.ASHWATHA AND OTHERS in Civil Appeal No.2166 of 2009 decided on 06.12.2017 has held at paragraphs 3, 4 5 and 10 as under:
“3. The original grantees in these cases, who were members of the Scheduled Caste Community, were granted the lands by a common grant sometime in the year 1946- 1947. By that grant each of the grantees was given two acres of land. The successors of the grantees or the grantees themselves transferred the lands to certain individuals sometime in the year 1967. These transferees further transferred the lands after 8/10 years to different persons. The present Appellants are purchasers from the land transferees.
4. Arguments have been addressed before us at length on whether the present Appellants had perfected their titles on the date of the coming into force of the Karnataka Act. We are not inclined to go into this question because the instant matters can be decided on an aspect settled by this Court in the case of Chhedi Lal Yadav and Ors. V. Hari Kishore Yadav (dead) through L.Rs and Ors. MANU/SC/0781/2017 : 2017 (6) Scale 459 and Nekkanti Rama Lakshmi v. State of Karnataka and Anr. MANU/SC/1814/2017 : 2018 (6) Kar.
L.J. 792 (SC), C.A.No.1390 of 2009, dated 26-
10-2017. In these two decisions, one of which arose under the Karnataka Act, this Court has held that the authorities entrusted with the power to annul proceedings purported to have been made by the original grantees, must exercise their powers to do so, whether on an application, or suo motu, within a reasonable time since no time is prescribed by law for taking such action. In the decided cases, action had been initiated after about 20 to 25 years of the coming into force of the Karnataka Act.
5. In the present cases, it is undisputed that the action had been initiated after almost 20 years from the coming into force of the Karnataka Act. In principle, we do not see any reason why the delay in the present cases should be considered to be reasonable. There is no material difference between the period of
10. We are in respectful agreement with the aforesaid observations. It is, however, necessary to add that where limitation is not prescribed, the party ought to approach the competent Court or authority within reasonable time, beyond which no relief can be granted.
As decided earlier, this principle would apply even to suo motu actions.”
8. The petitioner has not produced any documents to show that the land in question is a granted land. The petitioner has relied on extract of mutation register to contend that it is granted land. Based on the mutation extract alone, one cannot come to the conclusion that it is a granted land. On the other hand, it is to be seen that the land in question is granted to the 4th respondent under the Karnataka Land Reforms Act, 1961. The 2nd respondent in the absence of any material on record to indicate that the grant and the sale said to have taken place in the year 1957 has rightly set aside the order passed by the 3rd respondent. The learned Single Judge on examination of the material on record was of the view, that when the grant itself is in doubt, the question of violation of the condition of the grant would not arise. In the absence of any material with regard to grant, the learned Single Judge was right in holding that the question of violation of condition of grant would not arise. No ground is made out to interfere with the order passed by the learned Single Judge. Accordingly, the writ appeal is dismissed.
9. We appreciate the assistance rendered by Ms. Maitreyi Krishnan as Amicus Curiae. The registry is directed to pay Amicus Curiae the fees in a sum of Rs.10,000/- within four weeks from the date of receipt of a copy of this order.
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JUDGE JUDGE NG* CT:bms