Karnataka High Court
Smt Palamma Since Deceased By Her Lrs vs Ajjappa Since Deceased By His Lrs on 20 March, 2020
Author: H T Narendra Prasad
Bench: H. T. Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
WRIT PETITION No.37866 OF 2012 (SC-ST)
BETWEEN:
1. Smt. Palamma
Since deceased by her LRs
a) Obaleshappa
S/o late Lasumakka (deceased)
b) Thippamma
W/o Thippaswamy,
Aged 50 years,
Mailanahalli, TAlaku Hobli,
Challakere Taluk,
Chitradurga District - 577 522. ...Petitioners
(By Sri. H. Mohan Kumar, Advocate)
AND:
1. Ajjappa
Since deceased by his LRs
a) Palaiah
S/o late Ajjappa,
b) Ningappa
S/o late Ajjappa,
Mailanahalli,
Talaku Hobli,
Challakere Taluk,
Chitradurga District - 577 522.
2. The Deputy Commissioner,
Chitradurga District,
Chitradurga - 577 501.
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3. The Assistant Commissioner
Chitradurga Sub-Division,
Chitradurga - 577 501. ...Respondents
(By Sri. Harish N.R., Advocate for
Sri. B.M. Siddappa, Advocate for R1(A & B)
Smt.Savithramma, HCGP for R2 & R3)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India, praying to quash the order dated
19.10.2011 passed by respondent No.2 vide Annexure-D.
This Petition coming on for Preliminary Hearing in 'B'
Group, this day, the Court made the following:
ORDER
This writ petition is directed against the order dated 19.10.2011 passed by respondent No.2 vide Annexure-D, whereby the authority has allowed the appeal filed by the legal representatives of respondent No.1 under Section 5A of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as 'the Act' for short).
2. The case of the petitioners is that land bearing Sy. No.209 (old Sy. No.93/1) measuring 06 acres situated at Mailanahalli Village, Challakere Taluk was originally granted in favour of one Palamma, W/o Thippaga under 3 Darkasth Rules on 29.10.1962 with a condition not to alienate the property for a period of 15 years. The original grantee has executed a Will dated 14.04.1971 in favour of respondent No.1, who is grantee's sister's son. Thereafter, the original grantee-Palamma died on 06.05.1978. The PTCL Act came into force on 01.01.1979. The legal representatives of Palamma have filed an application under Sections 4 and 5 of the Act for resumption of land before the Assistant Commissioner in the year 2000. The Assistant Commissioner by order dated 11.03.2011 has allowed the application and restored the land in favour of legal representatives of original grantee. Being aggrieved by the same, legal representatives of respondent No.1 have filed an appeal before the Deputy Commissioner under Section 5A of the Act. The Deputy Commissioner by order dated 19.10.2011 has allowed the appeal and set aside the order passed by the Assistant Commissioner. Being aggrieved by the same, the petitioners are before this Court. 4
3. Sri. H. Mohan Kumar, learned counsel for the petitioners contended that land was originally granted in favour of Palamma under Darkasth Rules on 29.10.1962. The said Palamma has executed a Will in favour of respondent No.1 on 14.04.1971. If Will is executed in favour of a person, who is not a family member, it amounts to 'Transfer' as defined under Section 3(e) of the Act. Since execution of Will took place in the year 1971, the same is contrary to the terms of the grant. In view of Section 4(1) of the Act, Will dated 14.04.1971 is null and void. Therefore, the petitioners have filed an application for resumption of land under Sections 4 and 5 of the Act. Without considering this aspect of the matter and contrary to the provision of PTCL Act, the Deputy Commissioner has allowed the appeal filed by the legal representatives of respondent No.1 and set aside the order passed by the Assistant Commissioner. Hence, he prays for allowing the petition.
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4. Per contra, Sri. Harish N.R., learned counsel for respondent No.1 contended that original grantee has bequeathed the Will dated 14.04.1971 in favour of her sister's son and as per Section 3(e) of the Act, it is permissible since respondent No.1 is a family member. Hence, there is no violation of terms of the grant. Secondly, he contended that even assuming that Will dated 14.04.1971 is a transfer as defined under Section 3(e) of the Act, the application for resumption of land was filed in the year 2000 after lapse of 20 years from the date of the Act came into force. The application itself is not maintainable. In support of his contention, he has relied upon the judgment of the Hon'ble Apex Court in the case of Nekkanti Rama Lakshmi -v- State of Karnataka and Another reported in 2018 (1) Kar. LR 5 (SC). Hence, he prays for dismissal of the petition.
5. Heard the learned counsel for the parties and perused the writ papers.
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6. It is not in dispute that land bearing land bearing Sy. No.209 (old Sy. No.93/1) measuring 06 acres situated at Mailanahalli Village, Challakere Taluk was originally granted in favour of one Palamma, W/o Thippaga under Darkasth Rules on 29.10.1962 with a condition not to alienate the property for a period of 15 years. The original grantee has executed a Will in favour of respondent No.1, who is her sister's son on 14.04.1971.
7. Section 3(e) of the Act reads as follows:-
"(e) "transfer" means a sale , gift,
exchange, mortgage (with or without
possession), lease or any other transaction not being a partition among members of a family or a testamentary disposition and includes the creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transaction."
8. It is very clear from the above provision that transfer means a sale, gift, exchange, mortgage with or without possession, lease or any other transaction not being a partition among members of a family or a 7 testamentary disposition. What is excluded is that partition or testamentary disposition among family members. In the case on hand, a Will has been executed in favour of grantee's sister's son, who is not a family member. The word 'family' is not defined under the PTCL Act. It is defined under Karnataka Land Grant Rules, 1969. Rule 2(6) of the said Rules is extracted hereinbelow:
"2(6). "Family" in relation to a person means such person, and if married, the wife or husband as the case may be, and the dependant children and grand children of such person."
9. Under Hindu Succession Act, 1956, the sister's son falls under Class-II Item No.IV. Sister's son is not a Class-I heir. Therefore, it is very clear that execution of Will dated 14.04.1971 in favour of grantee's sister's son attracts "Transfer". Since, the execution of Will dated 14.04.1971 attracts as 'transfer' as defined under the provision of PTCL Act, the same is contrary to the terms of the grant. It amounts to Transfer as defined under Section 3(e) of the Act.
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10. The land has been granted in favour of Palamma on 29.10.1962 under Darkasth Rules with a condition not to alienate the property for a period of 15 years. Will has been executed on 14.04.1971 before the completion of alienation period. In view of Section 4(1) of the Act, there is a clear violation of terms of the grant and Will dated 14.04.1971 is null and void. Section 4(1) of the Act reads as follows:
"4. Prohibition of transfer of granted lands.-
(1) Notwithstanding anything in any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or the law providing for such grant, or sub-section (2) shall be null and void and no right, title or interest in such land shall be conveyed or be deemed ever to have conveyed by such transfer."
11. It is very clear from the above provision that any transfer of granted land either before or after commencement of the Act is contrary to the terms of the 9 grant of such land and the transaction is null and void. Hence, execution of Will dated 14.04.1971 is null and void in terms of Section 4(1) of the Act.
12. In respect of second contention raised by learned counsel for respondent No.1 that even if it is assumed that Will dated 14.04.1971 is a transfer as defined under Section 3(e) of the Act, the application for resumption of land has been filed after lapse of 20 years. The application itself is not maintainable. In the case on hand, land was granted on 29.10.1962. The original grantee has executed a Will dated 14.04.1971. The original grantee-Palamma died on 06.05.1978. The PTCL Act came into force on 01.01.1979. The legal representatives of original grantee have filed an application for resumption of land in the year 2000 after lapse of 20 years from the date of the Act came into force. There is a delay in filing the application. This view is fortified by the Apex Court in the case of Nekkanti Rama Lakshmi (supra),at paragraph No.8 has held as under:
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"8. However, the question that arises is with regard to terms of Section 5 of the Act which enables any interested person to make an application for having the transfer annulled as void under Section 4 of the Act. This Section does not prescribe any period within which such an application can be made. Neither does it prescribe the period within which suo motu action may be taken. This Court in the case of Chhedi Lal Yadav & Ors. vs. Hari Kishore Yadav (D) Thr. Lrs. & Ors., 2017(6) SCALE 459 and also in the case of Ningappa vs. Dy. Commissioner & Ors. (C.A. No. 3131 of 2007, decided on 14.07.2011) reiterated a settled position in law that whether Statute provided for a period of limitation, provisions of the Statute must be invoked within a reasonable time. It is held that action whether on an application of the parties, or suo motu, must be taken within a reasonable time. That action arose under the provisions of a similar Act which provided for restoration of certain lands to farmers which were sold for arrears of rent or from which they were ejected for arrears of land from 1st January, 1939 to 31st December, 1950. This relief was granted to the farmers due to flood in the Kosi River which 11 make agricultural operations impossible. An application for restoration was made after 24 years and was allowed. It is in that background that this Court upheld that it was unreasonable to do so. We have no hesitation in upholding that the present application for restoration of land made by respondent-Rajappa was made after an unreasonably long period and was liable to be dismissed on that ground. Accordingly, the judgments of the Karnataka High Court, namely, R. Rudrappa vs. Deputy Commissioner, 2000 (1) Karnataka Law Journal, 523, Maddurappa vs. State of Karnataka, 2006 (4) Karnataka Law Journal, 303 and G. Maregouda vs. The Deputy Commissioner, Chitradurga District, Chitradurga and Ors, 2000(2) Kr. L.J.Sh. N.4B holding that there is no limitation provided by Section 5 of the Act and, therefore, an application can be made at any time, are overruled. Order accordingly."
13. It is very clear from the above judgment of the Apex Court that the application under Sections 4 and 5 of the Act for resumption of the land has to be filed within a reasonable time. In the case on hand, land was granted in 12 the year 1962. Will executed on 14.04.1971. The original grantee died on 06.05.1978. The PTCL Act came into force on 01.01.1979. The application for resumption of land has been filed in the year 2000 after lapse of 20 years from the date of the Act came into force. There is an inordinate delay in invoking the provision of Sections 4 and 5 of the Act.
14. In view of the law laid down in the aforesaid judgment, the application itself is not maintainable. Hence, the writ petition is devoid of merits. Accordingly, the writ petition is dismissed.
Sd/-
JUDGE MBM