Karnataka High Court
Smt. Kempamma vs The Deputy Commissioner on 9 March, 2020
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH 2020
BEFORE
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
W.P.No. 21739 OF 2012 (SC-ST)
BETWEEN:
1. Smt. Kempamma,
W/o Late. Kempegowda,
Since dead rep. by her LRs.
Are already on record as,
Petitioner Nos. 2 to 5.
2. Sri.Lokesh,
S/o Late. Kempegowda,
Aged about 46 years.
3. Sri. Shivalingegowda,
S/o Late. Kempegowda,
Aged about 57 years.
4. Sri. Suresh,
S/o Late. Kempegowda,
Aged about 44 years.
5. Sri.Jagadish,
S/o Late. Kempegowda,
Aged about 42 years.
6. Sri. Nanjundegowda,
S/o Late. Lakkegowda,
Aged about 68 years,
Residing at G.Mallenahalli,
Nonavinakere Hobli,
2
Tiptur Taluk.
7. Sri. Lakkamma,
W/o Late. Boregowda,
Aged about 65 years.
8. Sri.Satish,
S/o Late. Boregowda,
Aged about 42 years.
Petitioner Nos.1 to 5, 7 & 8 are
R/at G.Mallenahalli,
Novvinakere Hobli,
Tiptur Taluk, Tumkur District. ... Petitioners
(By Sri.H.P.Leeladhar & Co. Advocate)
AND:
1. The Deputy Commissioner,
Tumkur District,
Tumkur.
2. The Assistant Commissioner,
Tiptur Taluk,
Tiptur, Tumkur District.
3. Sri. Javaraiah @
Mavinahalli Javaraiah,
Died on 18.11.2004,
No LRs.
4. Smt. Thimmamma,
W/o Thimmaiah,
Aged about 68 years,
R/o G.Mallenahalli,
Nonavinakere Hobli,
Tiptur Taluk.
3
5. Smt. Jayamma,
Died on 21.01.2009
No LRs. ... Respondents
(By Smt. Savithramma, HCGP. For R1 & R2:
Sri.N.Surendra Kumar, Advocate for R4:
R3 & R5 are deceased and No LRs.)
This writ petition is filed under Articles 226 & 227 of the
Constitution of India praying to call for the entire records
pertaining to order of the 1st respondent in PTCL Appeal
No.32/2002-03 dated:24.09.2010 under Annexure-A & etc.,
This writ petition, coming on for hearing, this day, the
Court, made the following:
ORDER
This writ petition is directed against the order dated 24.09.2010 passed by the Deputy Commissioner vide Annexure- A and the order dated 28.11.2002 passed by the Assistant Commissioner vide Annexure-B whereby the authorities have resumed the land in favour of the legal representatives of the original grantees under Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, 'the PTCL Act'). 4
2. The brief facts of the case are that the land bearing Sy.No.64 measuring 3 acres situated at Mallenahally Village, Dabbeghatta Hobli, Turuvekere Taluk, Tumkur District was originally granted in favour of one Thopina Thimmaiah under Darkasth Rules on 25.02.1955. The legal representatives of the original grantee sold the land in favour of one Patel Linge Gowda by a sale deed dated 16.12.1964. After the PTCL Act came into force, the legal representatives of the original grantee Thimmaiah have filed an application under Sections 4 and 5 of the PTCL Act before the Assistant Commissioner for resumption of land in the year 1979. The Assistant Commissioner by order dated 12.04.1982 resumed the land in favour of the legal representatives of the original grantee.
3. In the aforesaid survey number, another 3 acres of land was granted in favour of one Venkataiah, S/o.Thimmaiah on 25.02.1955. The legal representatives of the original grantee sold 2 acres to Patel Linge Gowda on 30.06.1967 and remaining 1 acre has been sold in favour of one Boregowda, S/o.Lingegowda on 17.04.1972 and 21.09.1974. The legal 5 representatives of the original grantee have filed an application for resumption of land before the Assistant Commissioner under Sections 4 and 5 of the PTCL Act in the year 1992. The Assistant Commissioner by order dated 08.12.1992 resumed the land in favour of the legal representatives of the original grantee.
4. In the aforesaid survey number 64, the competent authority has granted 4 acres of land in favour of one Thimmaiah @ Dadithimmaiah on 25.02.1955. The legal representatives of the original grantee one Javaregowda sold the land in favour of Patel Lingegowda on 22.11.1960. After the PTCL Act came into force, the legal representatives of the original grantee have filed an application before the Assistant Commissioner for resumption of the land in the year 1992. The Assistant Commissioner has allowed the application and resumed the land in favour of the legal representatives of the original grantee on 25.02.1993.
5. Against the order passed by the Assistant Commissioner in all the aforesaid cases the petitioners have filed an appeal before the Deputy Commissioner under Section 5A of the PTCL 6 Act. The Deputy Commissioner by order dated 31.03.1999 allowed the appeal and remanded the matter to the Assistant Commissioner for fresh consideration in accordance with the law laid down by this Court in the case of PEDDAREDDY vs. STATE OF KARNATAKA reported in ILR 1993 Kar.551. After the matter has been remanded to the Assistant Commissioner, the Assistant Commissioner has re-numbered the petition as PTCL No.12/1999-2000. The Assistant Commissioner by order dated 28.11.2002 allowed the applications and resumed the land in favour of the legal representatives of the original grantee. Being aggrieved by the same, petitioners filed an appeal before the Deputy Commissioner under Section 5A of the PTCL Act. The Deput4y Commissioner by order dated 24.09.2010 dismissed the appeal confirming the order passed by the Assistant Commissioner. Being aggrieved by the same, the petitioners are before this Court.
6. Sri H.P.Leeladhar, learned counsel appearing for the petitioners submitted that the land has been granted in all cases on 25.02.1955 in Sy.No.64 situated in Mallenahally Village, 7 Dabbeghatta Hobli, Turuvekere Taluk, tumkur District. The total extent of the land of 10 acres was purchased by the predecessors of the petitioners by different sale deeds and they are in peaceful possession and enjoyment of the property. The PTCL Act came into force on 01.01.10979. The legal representatives of the original grantees have filed applications before the Assistant Commissioner under Sections 4 and 5 of the PTCL Act after a long delay. The applications are not maintainable. In support of his case, he has relied on the judgment of the Hon'ble Supreme Court in the case of NEKKANTI RAMALAKSHMI vs. STATE OF KARNATAKA AND ANOTHER reported in 2017 SCC Online SC 1862. Hence, he sought for allowing the writ petition.
7. Per contra, Smt.Savitramma, learned Government Pleader appearing for respondent Nos. 1 and 2 and Sri N.Surendra Kumar, learned counsel appearing for respondent No.4 contended that the land In dispute has been granted in favour of the grantees under Darkhast Rules on 25.02.1955 with a condition of non-alienation for a period of 20 years. By 8 violating the condition the legal representatives of the original grantees have sold the land in favour of the petitioners. Therefore, the authorities have rightly passed an order resuming the land in favour of the legal representatives of the original grantees. They further contended that in respect of the land granted in favour of Thimmaiah, S/o. Kariyappa, the application filed is in time, i.e., in the year 1979-80. Therefore, there is no delay in invoking the provisions of Sections 4 and 5 of the PTCL Act. In respect of that land is concerned, the judgment of the Hon'ble Apex Court in NEKKANTI RAMALAKSHMI (supra) is not applicable. Hence, they sought for dismissal of the writ petition.
8. Heard learned counsel for the parties and perused the writ papers.
9. It is not in dispute that the land bearing Sy.No.64 situated in Mallenahally Village, Dabbeghatta Hobli, Turuvekere Taluk, Tumkur District totally measuring 10 acres has been granted to different persons under Darkasth Rules on 9 25.02.1955. The legal representatives of the original grantees have sold the land in favour of petitioners' predecessors by different sale deeds. The aforesaid land has been alienated contrary to the Land Grant Rules by violating the conditions. The PTCL Act came into force on 01.01.1979. Since there is violation of condition of the land grant the legal representatives of the original grantees have filed an application for resumption of the land under Sections 4 and 5 of the PTCL Act before the Assistant Commissioner. In respect of the land granted in favour of Thimmaiah, S/o.Kariyappa to the extent of 3 acres is concerned, the application filed is in time. Therefore, the contention of the petitioners that in view of the law laid down by the Hon'ble Apex Court in the case of NEKKANTI RAMALAKSHMI (supra) the application is not maintainable is unsustainable. Therefore, the impugned order in respect of the land granted in favour of one Thimmaiah, S/o.Kariyappa to the extent of 3 acres is confirmed.
10. In respect of the land granted in favour of one Venkatappa to the extent of 3 acres and to one Thimmaiah, 10 S/o.Javaraiah to the extent of 4 acres are concerned, they have filed the application for resumption of the land in the year 1992 after a lapse of 13 years from the date the Act came into force. The Hon'ble Apex Court in the case of NEKKANTI RAMALAKSHMI (supra) has held as hereinbelow:
"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 11 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 2River 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 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."12
11. A Division Bench of this Court in the case of NINGAMMA vs. THE TIBETIAN CHILDREN'S VILLAGE HQRS: DHARMASHALA & OTHERS (W.A.No.4092/2017 disposed of on 09.04.2019)has held that if the application for resumption of land is filed after a lapse of 12 years, it is unreasonable delay and the application is not maintainable.
12. In the case on hand, the land measuring 3 acres granted in favour of Venkatappa and 4 acres in favour of Thimmaiah, S/o.Javaraiah were sold in the years 1960, 1967, 1972 and 1974 and the PTCL Act came into force on 01.01.1979 and the application for resumption of the land has been filed in the year 1992 after a lapse of 13 years from the date the Act came into force. In view of the law laid down by the Hon'ble Apex Court and of this Court in the aforesaid judgments, the applications filed by the legal representatives of the original grantees itself are not maintainable. Hence, the impugned order in respect of these two extents are liable to be quashed.
13
13. Accordingly, the writ petition is allowed in part. The order passed by the Assistant Commissioner dated 28.11.2002 vide Annexure-B and the order passed by the Deputy Commissioner dated 24.09.2010 vide Annexure-A, in so far as the grant of land in favour of Venkatappa to the extent of 3 acres and in favour of Thimmaiah, S/o.Javaraiah to the extent of 4 acres are quashed. In so far as the land to the extent of 3 acres which was granted in favour of one Thimmaiah, S/o.Kariyappa is concerned, the orders of both the authorities are confirmed.
Sd/-
JUDGE Cm/-