Karnataka High Court
Sri Durgappa vs The State Of Karnataka on 31 May, 2023
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WP No. 27429 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 27429 OF 2012 (SC-ST)
BETWEEN:
1. DURGAPPA
S/O LATE GUNDAPPA
AGED ABOUT 65 YEARS
RESIDING AT MEERASABIHALLI
CHALLEKERE TALUK
CHITRADURGA DISTRICT - 577522
2. KENCHAPPA
S/O LATE GUNDAPPA
AGED ABOUT 63 YEARS
RESIDING AT MEERASABIHALLI
CHALLEKERE TALUK
CHITRADURGA DISTRICT - 577522
Digitally 3.
signed by THIMMAPPA
ALBHAGYA S/O GUNDAPPA
Location: DEAD BY LRS.
HIGH
COURT OF
KARNATAKA
3(A). THIMMAKKA
W/O LATE THIMMAPPA
AGED ABOUT 58 YEARS
3(B). MANJUNATHA T
S/O LATE THIMMAPPA
AGED ABOUT 29 YEARS
3(C). SMT.SHILPA
D/O LATE THIMMAPPA
AGED ABOUT 32 YEARS
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WP No. 27429 of 2012
ALL ARE RESIDING AT
MEERASABIHALLI
CHALLEKERE TALUK
CHITRADURGA DISTRICT - 577522
...PETITIONERS
(BY SMT.MANJULA D, ADVOCATE FOR
SRI.L.SRINIVAS BABU & ASSTS, ADVOCATE
PETITION AGAINST P.3 STANDS ABATED V/O/D 12.12.2017)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY THE
PRINCIPAL SECRETARY
DEPARTMENT OF REVENUE
M S BUILDING,
BENGALURU - 560001
2. THE DEPUTY COMMISSIONER
CHITRADURGA DISTRICT
CHITRADURGA - 577501
3. THE ASSISTANT COMMISSIONER
CHITRADURGA SUB DIVISION
CHITRADURGA
4. SRI A K RANGAPPA
S/O DYAMAPPA
DEAD BY LRS.,
4(A) SRI KENCHAPPA
S/O LATE A K RANGAPPA,
SINCE DEAD BY LRS
4(A)(I) OBANNA
S/O LATE KENCHAPPA
MAJOR
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WP No. 27429 of 2012
4(A)(II) RANGASWAMY
S/O KENCHAPPA
MAJOR
4(A)(III) SAVITHRAMMA
D/O SAVITHRAMMA
MAJOR
ALL ARE RESIDING AT
MEERASABIHALLI
CHALLEKERE TALUK
CHITRADURGA DISTRICT
5. SRI.SANNA RANGAPPA
S/O RANGAPPA
DEAD BY LRS
5(A) SRI YELLAPPA
S/O LATE SANNA RANGAPPA
MAJOR
6. SRI DURUGAPPA
S/O KERE HANUMAPPA
DEAD BY LRS
6(A). SRI SHANTHAPPA
S/O LATE DURUGAPPA
MAJOR
ALL ARE RESIDENTS OF
MEERASABIHALLI
CHALLEKERE TALUK
CHITRADURGA DISTRICT - 577522
...RESPONDENTS
(BY SRI.VENKAT SATYANARAYAN, HCGP FOR R.1 TO R.3;
SRI.SUNI KUMAR P BANGARI, ADVOCATE FOR R.5(A), R.6(A) AND
R.4A (I-III))
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WP No. 27429 of 2012
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 18.07.12 PASSED BY THE R2 THE DEPUTY
COMMISSIONER, CHITRADURGA VIDE ANNEX-B AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING - B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This captioned writ petition is filed by the petitioners - purchasers feeling aggrieved by the order passed by respondent No.2 - Deputy Commissioner, wherein respondent No.2 - Deputy Commissioner has allowed the appeal and has reversed the order of respondent No.3 - Assistant Commissioner thereby restoring the lands to respondent Nos.4 to 6.
2. Before I advert to the facts of the present case, it would be useful to refer to the judgments rendered by the Apex Court on this issue in Nekkanti Rama Lakshmi vs. -5- WP No. 27429 of 2012 State of Karnataka and another1 and Vivek M. Hinduja vs. M. Aswatha2. It would be also useful to refer to the judgment rendered by a Co-Ordinate Bench of this Court in W.P.No.50446 of 2012, which was confirmed by the Division Bench in W.A.No.16/2021 disposed of on 05.04.2021.
3. The Apex Court in the case of Nekkanti Rama Lakshmi, while interpreting Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (for short "PTCL Act") had an occasion to examine the point of limitation wherein interested person can file appropriate application seeking annulment of sale as void under Section 4 of the PTCL Act. The Apex Court by reiterating the principles laid down in Chhedi Lal Yadav vs. Hari Kishore Yadav3 and also in the case of Ningappa vs. Deputy Commissioner and others4 has held that where Statute did not prescribe 1 (2020) 14 SCC 232 2 (2019) 1 Kant LJ 819 SC 3 (2018) 12 SCC 527 4 (2020) 14 SCC 236 -6- WP No. 27429 of 2012 the period of limitation, the provisions of the Statute must be invoked within a reasonable time. The Apex Court was of the view that the authorities have to give due regard to the period of time within which action has to be taken by the interested person. The Apex Court was of the view that it is well within the discretion of the competent authorities not to annul the alienations where there is inordinate delay in initiating action by the interested persons under Sections 4 and 5 of the PTCL Act. The co- ordinate Bench of this Court in W.P.No.50446/2012 disposed of on 24.1.2020 declined to entertain the application filed by the original grantee where there was a delay of ten years. This Court was of the view that the application itself was not maintainable since the same was not filed within a reasonable time. While recording the finding, this Court relied on the judgment of the Apex Court in Ningappa vs. Deputy Commissioner and others, where the Apex Court had declined to entertain the application which was submitted after nine years seeking restoration of land under Sections 4 and 5 of the -7- WP No. 27429 of 2012 PTCL Act. The judgment rendered by a co-ordinate Bench of this Court in W.P.No.50446/2012 is affirmed by the Division Bench of this Court in W.A.No.16/2021.
4. The short question that requires consideration at the hands of this Court is;
As to whether respondent Nos.4 to 6
were entitled to seek restoration of the lands?
5. It is borne out from the records that respondent Nos.4 to 6 were granted the petition land by the Authority vide order dated 13.03.1951 and non-alienation clause indicates that grantees were prohibited from alienating the property for a period of 10 years. The sale deed is dated 15.07.1966. On examining the records, which are forthcoming from the findings and observations made by respondent No.2 - Deputy Commissioner, this Court is of the view that the petitioners could not have initiated resumption proceedings by invoking provisions of 'PTCL Act'. The law relating to the right of a grantee seeking -8- WP No. 27429 of 2012 restoration of lands, which were alienated prior to commencement of 'PTCL Act', is no more res-integra.
6. The Hon'ble Apex Court while referring to the para No.24 of the judgment rendered in the case of MANCHEGOWDA VS. STATE OF KARNATAKA5 has held that the provisions of 'PTCL Act' cannot be made applicable to the alienations made prior to commencement of PTCL Act. The Hon'ble Apex Court in the case JAGADISH VS. STATE OF KARNATAKA has also culled out para No.24 of MANCHEGOWDA'S CASE, I deem it fit to cull out para No.24, which reads 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 5 1984(3) SCC 301 -9- WP No. 27429 of 2012 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
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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."
7. On meticulous examinations of the observations and findings recorded by the Hon'ble Apex Court in the case of JAGADISH VS. STATE OF KARNATAKA, it is
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WP No. 27429 of 2012clearly evident that Sections 4 and 5 of the 'PTCL Act' are applicable only if the granted lands were transferred in breach of condition relating to prohibition on transfer of such granted lands. The Hon'ble Apex Court has clearly held that granted lands transferred before commencement of the 'PTCL Act' and not in contravention of prohibition on transfer are clearly beyond scope and purview of 'PTCL Act'. These significant details are not rightly dealt by respondent No.2 - Deputy Commissioner. The Deputy Commissioner referring to the transaction has erroneously come to the conclusion that the alienation by original grantee is in contravention of provisions of 'PTCL Act' and therefore, proceeded to allow the petition filed by the petitioners seeking restoration of the lands. The order of respondent No.2 - Deputy Commissioner is contrary to the dictum and principles laid down by the constitutional Bench in the case of MANCHEGOWDA VS. STATE OF KARNATAKA (cited supra) reiterated by the Hon'ble Apex Court in the subsequent judgments rendered in the
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WP No. 27429 of 2012case of JAGADISH VS. STATE OF KARNATAKA (cited supra).
8. Having regard to the fact that the grant is of the year 1951 and non-alienation period being 10 years and the first sale, admittedly, is after expiry of non-alienation clause and the first sale made by the original grantee in favour Khadar Basha is dated 15.07.1966 and therefore, the first alienation, admittedly, being after expiry of non- alienation restriction and before commencement of the Act, the petition land even if it is held to be granted land, does not fall within the purview of the provisions of the 'PTCL Act' as held by in the case of JAGADISH VS. STATE OF KARNATAKA (cited supra). Thereafter, Khadar Basha, in turn, sold the land in favour of petitioner Nos.1 to 3 under registered sale deed dated 16.07.1971. Therefore, respondent No.2 - Deputy Commissioner erred in ordering for restoration of the petition land. Even otherwise, the remand proceeding initiated by respondent Nos.4 to 6 is found to be after lapse of 30 years.
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WP No. 27429 of 2012
9. In the present case on hand, the remand proceedings initiated by respondent Nos.4 to 6 is found to be after lapse of 30 years. The authorities below have not examined the delay and laches in moving the application. The judgments cited supra clearly indicates that on the ground of gross delay and laches, the application made by the grantee or by the legal heirs under Section 5(2) of the PTCL Act requires to be rejected. The Hon'ble Apex Court in the above cited judgment has held that where statute does not provide for limitation, the authorities and State must act consciously and if the process of invoking the provisions of statute is delayed and is initiated after long lapse of time, the delay by itself would act as an impediment. Thus, without exception and coming across various rules of law, the Apex Court has categorically stated the law in respect of exercise of power/jurisdiction under statute where no limitation is stipulated. The law on the point of delay and laches to invoke the provisions of PTCL Act is well settled by catena of judgments.
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WP No. 27429 of 2012
10. In the instant case, diligence is woefully lacking. There is a gross delay of 30 years in initiating action. Therefore, the respondent No.2/Deputy Commissioner was not justified in entertaining the application. The respondent Nos.4 to 6 are not entitled for restoration of the petition land as the material on record also indicates that third party rights are created. The petitioners herein are the second purchasers.
11. The principles laid down by the Apex Court in Chhedi Lal Yadav vs. Hari Kishore Yadav6 [(2018) 12 SCC 527] is also squarely applicable to the present case on hand. The Apex Court was of the view that if there is inordinate, unexplained and unjustified delay on the part of the applicant in seeking restoration of the land, such inaction would create a right in favour of other party. Therefore, the Apex Court was of the view that time must be reckoned reasonably, not only in order to preserve the rights and advantages which party possesses but equally to protect each party from losses he ought not to suffer. 6 (2018) 12 SCC 527
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WP No. 27429 of 2012The registered sale deeds are public documents and after verifying the public documents, if citizens enter into further transaction believing such public documents to be genuine, the subsequent alienations cannot be set at naught by showing leniency to aggrieved party who has slept over his rights, if rights are crystallized on account of inaction on the part of the original grantee. The said application has to be rejected on this count also.
12. For the reasons stated supra, the order passed by the respondent No.2/Deputy Commissioner is liable to be quashed.
13. Hence, I pass the following:
ORDER
(i) The writ petition is allowed.
(ii) The order passed by the respondent No.2/Deputy Commissioner vide Annexure-B is hereby set aside.
Consequently, the order passed by
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WP No. 27429 of 2012
respondent No.3 - Assistant
Commissioner is confirmed.
(iii) Pending interlocutory applications, if any, are also disposed off accordingly.
Sd/-
JUDGE NBM List No.: 1 Sl No.: 19`