Karnataka High Court
Manjunatha vs Singa Reddy on 30 December, 2020
Author: M.Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30th DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.775/2014 (SC - ST)
BETWEEN
MANJUNATHA
S/O MUNIYAPPA,
AGED ABOUT 36 YEARS,
R/AT KITHAGANUR VILLAGE,
BIDARAHALLI HOBLI,
BENGALURU EAST TALUK.
... PETITIONER
(BY SRI C.M.NAGABUSHANA, ADVOCATE (VIDEO
CONFERENCING))
AND
1. SINGA REDDY
S/O B.SIDDA REDDY,
C/O DENIM DEVELOPERS,
NO. 330G, 13TH MAIN,
8TH CROSS, HAL 2ND STAGE,
BENGALURU.
2. H.P.SATHYA
S/O G.H.PRASAD,
RESIDING AT
C/O DENIM DEVELOPERS,
NO. 330G, 13TH MAIN,
2
8TH CROSS, HAL 2ND STAGE,
BENGALURU.
3. ABDUL SAMAD
S/O HAJIPACHA SAB,
NO.9, MEDAHALLI VILLAGE
VIGRO NAGAR POST
BENGALURU - 560 049.
4. M.ASHOK KUMAR
S/O C.MOHAN,
NO. 33/2, OSBORBE ROAD,
BENGALURU - 560 042.
5. THE TAHSILDAR
BENGALURU EAST TALUK
BENGALURU.
6. THE ASSISTANT COMMISSIONER
BENGALURU NORTH,
SUB-DIVISIONS,
BENGALURU.
7. THE DEPUTY COMMISSIONER
BENGALURU DISTRICT
BENGALURU.
8. RAVI SHANKAR
AGED ABOUT 37 YEARS,
S/O LATE KRISHNAPPA,
R/AT NO.170, 15TH MAIN ROAD,
NANJUNDESHWARANAGAR,
NANDINI LAYOUT,
BENGALURU - 560 096.
9. H.RAVISHANKAR RAJ
AGED ABOUT 42 YEARS,
S/O LATE HANUMATHA RAJU,
R/AT NO.71/1, 2ND FLOOR, 2ND CROSS,
3
1ST STAGE MICHEL PALYA,
INDIRANAGAR,
BENGALURU - 560 038.
10. V.RAJ KUMAR
AGED ABOUT 42 YEARS,
S/O M.S.VELU
R/AT NO.52, 1ST MAIN ROAD,
LAKSHMIPURAM,
ULSOOR POST,
BENGALURU - 560 008.
11. SMT.J.SUMATHY
AGED ABOUT 34 YEARS,
W/O V.RAJ KUMAR,
R/AT NO.52,
1ST MAIN ROAD, LAKSHMIPURAM,
ULSOOR POST,
BENGALURU - 560 008.
12. SHANKAR
MAJOR IN AGE,
FATHER'S NAME NOT KNOWN,
R/AT NO.82, PARAMESHWARI LAYOUT,
KITTAGANOOR, K.R.PURAM POST,
BENGALURU - 560 036.
13. KRISHNAMURTHY
MAJOR IN AGE,
FATHER'S NAME NOT KNOWN,
R/AT NO.82, PARAMESHWARI LAYOUT,
KITTAGANOOR, K.R.PURAM POST,
BENGALURU - 560 036.
... RESPONDENTS
(BY SMT.RADHA, ADVOCATE FOR R1 (VIDEO CONFERENCING);
SRI VARUN R.R., ADVOCATE FOR SRI ABHIJITH
HARANAHALLI, ADVOCATE FOR R2 TO R4 (PHYSICAL HEARING);
SMT.SAVITHRAMMA, HCGP FOR R5 TO R7(PHYSICAL HEARING);
4
SRI MOHAMMED SHAFIULLA, ADVOCATE FOR R10 - R12;
R8 AND R9 ARE SERVED AND UNPRESENTED;
SERVICE OF NOTICE TO R13 HELD SUFFICIENT VIDE ORDER
DATED 10.10.2019)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DT.25.10.13, PASSED BY THE DEPUTY
COMMISSIONER, BANGALORE DIST. R7 ANN-M & PLEASED TO
CONFIRM THE WELL SPEAKING ORDER DT.10.1.12, PASSED BY
THE ASSISTANT COMMISSIONER BANGALORE NORTH SUB-
DIVISION R6, ANN-G ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 04.11.2020, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING :-
ORDER
The petitioner in this writ petition has called in question the order of the Deputy Commissioner dated 25.10.2013, whereby, the Deputy Commissioner set aside the order dated 10.01.2012, of the Assistant Commissioner who had directed resumption of land in favour of the legal heir of the original grantee.
2. For the sake of convenience, the parties would be referred to as the legal heir of the original grantee (petitioner) and purchasers (respondent Nos.1 to 4 and 8 to 13).
53. Brief facts of the case leading to filing of the writ petition as pleaded are that, the land in survey No.81 (old) and 212 (new), measuring 2 acres situated at Kithiganur Village, Bidarahalli Hobli, was granted to one Ayiluga @ Munishami on 09.06.1934, which was to be non-alienable for a period of 15 years. The original grantee sold the land on 12.04.1949 and the land has subsequently changed hands three times by sale deeds dated 12.04.1949, 01.11.1957, 18.05.1962 and 28.02.1966 and the purchasers herein have come in possession of the said land by way of sale not from the original grantee but purchasers of the original grantee on 13.11.1995.
4. For the first time, on 16.12.2009, after about 30 years of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as 'the said Act' for short), which came into force on 01.01.1979, the legal heir of the original grantee 6 filed an application before the Assistant Commissioner seeking resumption of the land on the ground that the same is sold in violation of provisions of the said Act and sought annulment of the sale that had taken place. The Assistant Commissioner holding that the sale that took place on 13.11.1995, post that date, were all in violation of Section 4(1) of the said Act and directed resumption of the land in favour of the legal heir of the original grantee.
5. The purchasers filed an appeal before the Deputy Commissioner under Section 5A of the said Act, contending that the legal heir of the original grantee has suppressed the earlier sales that took place and deliberately sought annulment of the sixth sale. The Deputy Commissioner on perusal of the records held that the Assistant Commissioner ought to have considered the first sale and then arrived at a decision. The Deputy Commissioner set aside the order of the Assistant Commissioner by allowing the appeal. It is this 7 order of the Deputy Commissioner that is called in question in this petition filed by the legal heir of the original grantee.
6. Heard Sri C.M.Nagabushana, learned counsel for petitioner, Smt. Radha, learned counsel for first respondent, Sri Varun R.R., learned counsel for second to fourth respondents and Sri Mohammed Shafiulla, learned counsel for tenth to twelvth respondents.
7. The learned Counsel, Sri C.M.Nagabushana, appearing for the petitioner would vehemently argue and contend that the land that was granted on 09.06.1934, could not have been alienated at all and the very alienation being contrary to law, no title is passed on to any of the purchasers and would submit that the Assistant Commissioner was justified in allowing the application and resuming the land in favour of the legal heir of the original grantee. He would submit that the order of the Deputy Commissioner allowing the appeal is erroneous.
88. On the other hand, learned counsel appearing for the purchasers would submit that the petitioner was guilty of misrepresentation before the Assistant Commissioner as they deliberately suppressed the earlier sales and projected the application as if the sale that took place in the year 1995, was the first sale of the granted land.
9. I have given my anxious consideration to the submission made by the learned counsel for the parties and perused the material on record.
10. The land was granted to one Ayiluga, the grandfather of the present petitioner on 09.06.1934. The original grantee alienated the granted land on 12.04.1949, which is the first sale of the granted land and subsequently, the land has changed hands by subsequent sale deeds which are as follows:
"Registered sale deed in No.2402 on 12-4- 1949 first alienation 9 Registered sale deed No.2656 dated 01-11- 1957 Registered sale deed No.571 dated 18-05- 1962 Registered sale deed No.4079 dated 28-02- 1966 Registered sale deed dated 13-01-1995 Registered sale deed No.8288 dated 14-11-1995 Registered sale Deeds dated 31-03-1997 and 16- 03-2001, xxxxxx."
The legal heir of the original grantee for the first time in the year 2009, i.e., 30 years after the said Act coming into force, filed an application before the Assistant Commissioner seeking the following prayer.
"This is a Petition filed under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as the 'Act' in brief) representing that they belong to 10 Scheduled Caste; that Shri Ayiluga @ Munishamai, father of the Petitioner-1 and grandfather of the Petitioner-2 was granted the land in S.No.81(new No.212) situated at Kithiganur village, Bidarahalli Hobli, Bangalore East Taluk as per D.C.Order No.B2.DD.120/1934-35 dated 6.6.1934 and SDO.No.A3.DD.No.69/34-35 dated 9.6.1934 subject to non-alienation for ever; that after the death of Ayiluga @ Munishami, the 1st Petitioner and his brother have alienated the land under the registered Sale Deed No.9688/1994-95 dated 13.1.1995 and No.8288/1995-96 dated 14.11.1995; and subsequently under the sale deed dated 31.3.1997 and later under the sale deed No.12270/2000-01 dated 16.3.2001 from one hand to the other; thus, there is clear violation of the provisions of Section 4 of the Act; that therefore it is requested to restore the land in favour of the Petitioners."
The legal heir of the original grantee projected that the sale that has taken place on 13.01.1995 and subsequent dates 11 to be the first sale. The Assistant Commissioner without even verifying the records, held the sale had taken place after the said Act came into force, permission under Section 4(2) of the said Act ought to have been taken prior to the sale on 13.01.1995, 14.11.1995, 31.03.1997 and 16.03.2001 respectively. The Assistant Commissioner allowed the claim of the legal heir of the original grantee and set at naught the said sale deeds holding that they were in violation of Section 4(2) of the said Act.
11. It is not in dispute that the original grantee had for the first time alienated the granted land on 12.04.1949, the subsequent sales by the purchasers from the hands of the original grantee is no consequence as it is the first sale that will have to be taken into consideration, if it was sold in contravention of the provisions of the said Act. The said Act came into force on 01.01.1979. The legal heir of the original grantee for the first time filed an application seeking annulment of the sale after 30 years of the said Act coming 12 into force but deliberately suppressed the earlier sales. The legal heir of the original grantee is without a shadow of a doubt, guilty of suppression of the material facts as he did not approach the Assistant Commissioner with clean hands.
12. The Assistant Commissioner was duty bound to verify the original records and then arrive at a conclusion as to whether the land was sold in contravention of the provisions of the said Act. The Assistant Commissioner failed to look into the original records and wrongly holds that the sale of the year 1995, was in violation of Section 4(2) of the said Act.
13. It is on an appeal filed by the purchasers, the Deputy Commissioner on verification of the records clearly observes that the Assistant Commissioner was duty bound to look into the original records and then pass appropriate orders. The Deputy Commissioner in the course of the order holds that the original grantee had for the first time sold the land on 12.04.1949, and the purchasers have been in possession 13 thereon even prior to the said Act coming into force and set aside the order passed by the Assistant Commissioner. No fault can be found with the order of the Deputy Commissioner setting aside the illegal order of the Assistant Commissioner.
14. The contention of the learned counsel for the petitioner that the sale of the land in the year 1949, being in contravention of the said Act, all subsequent sales would be automatically rendered illegal, is unacceptable. It is not the sale that took place in the year 1949, that would be the determinative factor for resuming the land but the time at which, the proceedings are bought up by the original grantee or by his legal heir for the first time before the Assistant Commissioner seeking resumption of the land.
15. The application was filed by the legal heir of the original grantee - petitioner on 16.12.2009, 31 years after the said Act coming into force and 61 years after the first sale of the granted land, which was on 12.04.1949. Therefore, the 14 Assistant Commissioner ought to have rejected the application filed on account of sheer delay which was unexplained by the part of the legal heir of the original grantee. It is too late in the day for the petitioner to seek resumption of a land sold by his grandfather in the year 1949, by filing an application in the year 2009, that too, suppressing all the earlier sales.
16. The judgment relied on by the learned counsel for petitioner in the case of SATYAN VS. DEPUTY COMMISSIONER AND OTHERS (CIVIL APPEAL NO.2975- 2983 OF 2019 DECIDED ON 30.04.2019), is inapplicable to the facts of the case as SATYAN (supra) was rendered affirming the annulment of the sale after the said Act coming into force. The sale that was a subject matter before the Apex Court was the first sale and which took place after the said Act coming into force. The case at hand is a case of a sale which took place on 12.04.1949, which is long before the said Act coming into force.
1517. It is apposite to refer to the judgments of the Apex Court in the case from CHHEDI LAL YADAV V. HARI KISHORE YADAV reported in (2018) 12 SCC 527, wherein it has held as follows:
"10. In Advanced Law Lexicon by P. rd Ramanatha Aiyar, 3 Edn., "reasonable time" is explained as follows:
"That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer."
Thus, time must be reckoned reasonably, not only in order to preserve rights and advantages a party possesses, but equally to protect each party from the losses he ought not to suffer. Thus, whether an action has been taken within a reasonable time, must also be viewed from the point of view of the party who might suffer losses.
11. In the instant case, we find that the High Court had observed as follows:
"The auction-sale took place in 1942, the application for restoration of the lands was first made in 1975 and the appeal from it was dismissed for default in 1983. In the meanwhile, the disputed lands changed hands twice and were in the 16 possession of the appellant-writ petitioners from 1962 and 1986. Such a long-settled position could only be upset for some very compelling reasons and on making out an extremely strong case for restoration of the appeal. There is nothing on record to suggest anything remotely like that. Secondly, the action of the Additional Collector in restoring the appeal even without any notice to the appellant-writ petitioners was clearly illegal and in contravention of Sections 4 and 5 of the Act."
The High Court was clearly right in the view it had taken.
12. It is argued on behalf of the appellants that power of the Additional Collector for restoration of lands could have been exercised suo motu and since no limitation was prescribed for exercise of such power, the delay in this case may be overlooked. This submission presupposes that where the power can be exercised suo motu, such exercise may be undertaken at any time. The submission is directly contrary to a decision of this Court in Collector v. D. Narsing Rao [Collector v. D. Narsing Rao, (2015) 3 SCC 695 : (2015) 2 SCC (Civ) 396] where this Court affirmed the view [Collector v. D. Narasing Rao, 2010 SCC OnLine AP 406 : (2010) 6 ALD 748] of the Andhra Pradesh High Court. Para '17' of the 17 judgment reads as follows: (D. Narsing Rao case [Collector v. D. Narsing Rao, (2015) 3 SCC 695 : (2015) 2 SCC (Civ) 396] , SCC p. 706, para
17) "17. ... that the suo motu revision undertaken after a long lapse of time, even in the absence of any period of limitation was arbitrary and opposed to the concept of rule of law."
Thus, we have no hesitation in rejecting this contention.
13. In our view, where no period of limitation is prescribed, the action must be taken, whether suo motu or on the application of the parties, within a reasonable time. Undoubtedly, what is reasonable time would depend on the circumstances of each case and the purpose of the statute. In the case before us, we are clear that the action is grossly delayed and taken beyond reasonable time, particularly, in view of the fact that the land was transferred several times during this period, obviously, in the faith that it is not encumbered by any rights.
14. We are of the view that merely because the legislation is beneficial and no limitation is prescribed, the rights acquired by persons cannot be ignored lightly and proceedings cannot be initiated after unreasonable delay as observed by 18 this Court in Situ Sahu v. State of Jharkhand [Situ Sahu v. State of Jharkhand, (2004) 8 SCC 340]."
The Apex Court in the case of NEKKANTI RAMA LAKSHMI VS. STATE OF KARNATAKA AND ANOTHER reported in 2017 SCC ONLINE 1862, wherein it is held as follows:
"7. We, however, find that the observations in those cases are not apposite and are made with reference to the period of prescription in respect of Government properties under the Limitation Act, 1963.
8. It was also submitted on behalf of the respondents that Section 45 of the Karnataka Act proprio vigore annuls a transfer made in contravention of itself. Therefore, it makes no difference if the proceedings are initiated even after 20 to 25 years.
9. We do not find it possible to accede to this submission. This Court in the case of Board of Trustees of Port of Kandla v. Hargovind Jasraj6 reiterated the necessity of an order of a competent Court or Tribunal before which the impugned order can be declared as null and void. The Court relied on the oft-quoted passage 19 in Smith v. East Elloe Rural District Council7 which reads as under :
"...An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.' (Smith Case, AC pp.769-70) (emphasis supplied) This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out(sic) repeatedly in the House of Lords and Privy council without distinction between patent and latent defects (Ed. Wade and Forsyth in Administrative Law, 7th Edn.1994."
10. In the case of Pune Municipal Corporation v. State of Maharashtra8, this court reproduced the following observations with regard to the declaration of orders beyond the period of limitation as invalid:
20"39. Setting aside the decree passed by all the courts and referring to several cases, this Court held that if the party aggrieved by invalidity of the order intends to approach the court for declaration that the order against him was inoperative, he must come before the court within the period prescribed by limitation. 'If the statutory time of limitation expires, the Court cannot give the declaration sought for'."
(emphasis supplied)
11. 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.
12. We find from the impugned judgments that the High Court has not given due regard to the period of time within which the action was taken in the present cases. The competent authorities in all these cases had declined relief to the respondents and had refused to annul the transfers. In the circumstances, the impugned judgment(s) and order(s) passed by the High Court are set aside."
21The Apex Court has further reiterated in the case of MR.VIVEK M HINDUJA AND OTHERS v. MR. ASWATHA AND OTHERS reported in 2019 Kar.L.J. 819 (SC), "8. Shri R.S. Hedge appearing for the appellant urged several grounds. It is contended by Shri Hegde that proceedings are void for non-joinder of the first purchaser of the land. It is further contended that the non alienation period, i.e., period for which Kriyappa could not have transferred the land was not 15 years but was 10 years under the Rules of the land and, therefore, transfer was legal having been made after 10 years. However, the applicant had not produced the original grant, and, therefore, it was not possible for the purpose to come to a conclusion that the transfer was in breach of the non alienation period. We, however, find that one of the points raised on behalf of the appellant deserves acceptance. That point is that the application for restoration of the land was made by the heir of Kriyappa after unreasonably long period, i.e. 25 years from the Act came into force. Section 4 of the Act itself has a ubiquitous effect in it, annulling the transfer of granted land "made either before or after the commencement of the Act." as null and void. The Act does not specify how much before the commencement of the Act. Thus on a plain and critical reading of the Act, it seems that it covers proceedings made in time 22 before the Act was enacted. However, we are not called upon to deal with the reasonableness of this provision and we do not propose to say anything on this. The validity of the Act has been upheld by a judgment of this Court in Machegowda v. State of Karnataka, (1984) 3 SCC 301.
9. 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 v. Hari Kishore Yadav (D) Thr. Lrs., 2017 (6) SCALE 459 and also in the case of Ningappa v. Dy. Commissioner (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.
23This relief was granted to the farmers due to flood in the Kosi River which 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 v. Deputy Commissioner, 2000 (1) Karnataka Law Journal, 523, Maddurappa v. State of Karnataka, 2006 (4) Karnataka Law Journal, 303 and G. Maregouda v. The Deputy Commissioner, Chitradurga District, Chitradurga, 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."
The law laid down in the afore-extracted judgments of the Apex Court is followed by the learned Division Bench of this Court in the case of MUNIMADA @ MUNIMADAPPA V. SPECIAL DEPUTY COMMISSIONER, BANGALORE URBAN 24 DISTRICT reported in ILR 2019 KAR 4073, it was held as follows:
"4. We have given careful consideration to the submissions. Perusal of Section 4 of the said Act will show that sub-Section (1) which starts with a non obstante clause declares certain transfers as null and void. For ready reference, Section 4 is quoted, which reads thus:
"4. Prohibition of transfer of granted lands.- (1) Not with standing 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.
(2) No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government.
(3) The provisions of sub-sections (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a 25 Civil Court or of any award or order of any other authority."
Then comes Section 5, which reads thus:
"5. Resumption and restitution of granted lands.- (1) Where, on application by any interested person or on information given in writing by any person or suo motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4, he may. -
(a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed:
Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard;
(b) restore such land to the original grantee or his legal, heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir, such land shall be deemed to have vested in the Government free from all encumbrances.
The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the rides relating to grant of land.
26(1-A) After an enquiry referred to in subsection (1) the Assistant Commissioner may, if he is satisfied that transfer of any granted land is not null and void pass an order accordingly. (2) Subject to the orders of the Deputy Commissioner under Section 5-A, any order passed under sub-sections (1) and (1-A) shall be final and shall not be questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by the Assistant Commissioner in pursuance of any power conferred by or under this Act.
(3) For the purposes of this section, where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of Section
4."
5. Section 5 confers a power on the Assistant Commissioner of passing an order of taking possession of the land, the alienation of which is null and void as per sub-Section (1) of Section 4. In such a case, the Assistant Commissioner can 27 exercise the power of evicting all persons found in possession of the granted land.
6. Before passing an order under Section 5, the Assistant Commissioner must be satisfied that the transfer of any granted land is null and void under sub- Section (1) of Section 4. Sub-Section (1) of Section 5 provides a remedy to any interested person to apply to the Assistant Commissioner for exercising powers of resumption of the granted lands. The power can also be exercised suo motu.
7. Now we turn to the decision of the Apex Court in the case of Nekkanti Rama Lakshmi, (supra). Paragraph 8 of the said decision reads thus:
"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 28 Yadav v. Hari Kishore Yadav (D) Thr. Lrs., (2017) 6 Scale 459 and also in the case of Ningappa v. Dy.
Commissioner, (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, 195V. This relief was granted to the farmers due to flood in the Kosi River which 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 -
29Rajappa 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 v.
Deputy v. Commissioner, (2000) 1 Kant LJ 523, Maddurappa v. State of Karnataka, (2006) 4 Kant LJ 303 and G. Maregouda v. The Deputy Commissioner, Chitradurga District, Chitradurga and Ors, (2000) 2 Kant LJ (SN) 48 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."
(Underlines supplied)
8. Careful perusal of paragraph 8 shows that the Apex Court has observed that Section 5 does not prescribe any period within which an application can be made by an interested party for seeking resumption. It also notes that it does not prescribe any period within which suo motu action under sub-Section (1) can be taken. The Apex Court reiterated the law laid down in its earlier decision in Chhedi Lal Yadav v. Hari Kishore Yadav (Dead) 30 Through Legal Representatives [(2018) 12 SCC 527] . The Apex Court held that when the statute does not provide for a period of limitation, the provisions of the statute must be invoked within a reasonable time. The Apex Court also held that in such a case, whether on the application of the parties or suo motu, action must be taken within a reasonabletime. As the Apex Court has relied upon the earlier decision in the case of Ghhedilal Yadav (supra), we must make a reference to the said decision. This was a case arising under an enactment of State of Bihar which provided for restoration of possession. The issue before the Apex Court was whether making an application for restoration of a land after a period of 24 years from the date of enactment can be said to be an action taken within a reasonable time. In paragraph 13 of the said decision, the Apex Court held thus:
"13. In our view, where no period of limitation is prescribed, the action must he taken, whether suo motu or on the application of the parties, within a reasonable time.
Undoubtedly, what is reasonable time would depend on the circumstances of each case and the 31 purpose of the statute. In the case before us, we are clear that the action is grossly delayed and taken beyond reasonable time, particularly, in view-of the fact that the land was transferred several times during this period, obviously, in the faith that it is not encumbered by any rights."
(Underlines supplied)
9. We must note that in paragraph 12 of the said decision, the Apex Court also dealt with an argument that the power of restoration under the statute could be exercised suo motu and as no limitation is prescribed, when action is taken suo motu, the delay has to be overlooked. Even the said contention was negatived by the Apex Court by relying upon its earlier decision in the case of Collector v. D. Narsing Rao [(2015) 3 SCC 695] . Another argument which was negatived in the case of Chhedilal Yadav, (supra) was that as the legislation which provided for restoration or resumption is a beneficial Legislation, the rights acquired by persons in contravention of the Legislation cannot be ignored lightly. Even the said argument is negatived by the Apex Court paragraph 14.
3210. Therefore, in our considered view, the issue whether the grant provided a clause providing a permanent embargo on the alienation or whether it provided for an embargo on alienation for a limited period may not be relevant at all while we apply the law laid down by the Apex Court in the case of Nekkanti Rama Lakshmi, (supra). What is held by the Apex Court is that the remedy under Section 5 must be taken recourse to within a reasonable time. Therefore, irrespective of the fact whether the prohibition on alienation was for a limited period or whether there was a permanent prohibition on alienation, the law laid down by the Apex Court in the said decision will squarely apply.
11. In all the four cases in hand, apart from the gross delay from the date of alienation till the date of making the applications, admittedly, the applications under sub-Section (1) of Section 5 were made after lapse of about 27 years from the date on which the said Act came into force. By no stretch of imagination it can be said that the delay of 27 years is not unreasonable. Therefore, we concur with the view taken by the Learned Single 33 Judge, which is consistent with the law laid down by the Apex Court.
12. Now coming to W.A. No. 374/2019, even assuming that sub-Section (1) of Section 4 applies to any transfer and not only to the transfer effected by the grantee, still the application under sub- Section (1) of Section 5 will have to be made within a reasonable time. In this case also, the application was made 27 years after the said Act came into force. The first two sale deeds were of the date prior to the date on which the said Act came into force, Notwithstanding the rejection of the application under sub- Section (1) of Section 5, the contention of the appellant that his predecessor had not alienated the said property remains open which can be always agitated by filing an appropriate proceeding, if permissible at this stage, in accordance with law.
The afore-extracted judgments are applicable to the facts of the case and not the judgment rendered in the case of SATYAN (supra).
3418. For the aforestated reasons, I do not find any error committed by the Deputy Commissioner in allowing the appeal and setting aside the order of the Assistant Commissioner.
The writ petition lacks merit and is dismissed.
Sd/-
JUDGE Nvj CT:MJ