Karnataka High Court
Smt. P. Kamala vs The State Of Karnataka on 8 July, 2019
Equivalent citations: AIRONLINE 2019 KAR 2023, (2019) 4 KCCR 3945 (2019) 5 KANT LJ 485, (2019) 5 KANT LJ 485
Bench: L.Narayana Swamy, R Devdas
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JULY, 2019
:PRESENT:
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE R.DEVDAS
WRIT APPEAL NOs.596-597/2016 (SC-ST)
C/W
WRIT APPEAL NOs.774/2015 & 503/2016, WRIT
APPEAL NOs.775/2015 & 128/2016, WRIT APPEAL
NOs.588-589/2016 (SC-ST)
IN W.A. NOs.596-597/2016
BETWEEN
SMT. P. KAMALA,
D/O. LATE K. PUTTIAH,
AGED ABOUT 65 YEARS,
R/AT NO.261, SREE SHIVA KRUPA,
1ST "C" MAIN ROAD, 2ND STAGE,
MAHALAKSHMIPURAM,
BANGALORE-560 086.
... APPELLANT
(BY SRI PRAKASH T HEBBAR, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REVENUE DEPARTMENT,
5TH FLOOR, M.S. BUILDING,
DR. AMBEDKAR ROAD,
BANGALORE-560 001.
REP. BY ITS SECRETARY
2
2. THE SPECIAL DEPUTY COMMISSIONER
BANGALORE URBAN DISTRICT,
KANDHAYA BHAVANA,
K.G. ROAD, BANGALORE-560 009.
3. THE ASSISTANT COMMISSIONER
BANGALORE NORTH SUB-DIVISION,
VISHVESHWARAIAH TOWERS,
PODIUM BLOCK,
DR. AMBEDKAR ROAD,
BANGALORE-560 001.
4. SRI. KRISHNAPPA
S/O. SUBBAIAH,
MAJOR,
R/AT SURDENAPURA VILLAGE,
HESARAGATTA HOBLI,
BANGALORE NORTH TALUK-560 003.
5. SMT HELENE MOREAN
C/O S ALEXANDRA
MAJOR,
PARATHOTTAMM,
VAREYAR POST, KERALA POST - 450038.
6. SMT. RAMYARAMARATHNAM,
W/O. RAMARATHNAM,
MAJOR,
R/AT NO. 42/2, KASTURI RANGA,
IYENGAR ROAD, ALWAR PETE,
CHENNAI,TAMIL NADU.
... RESPONDENTS
(BY SRI V SREENIDHI, AGA FOR R1 TO R3
SMT M V SUSHEELA, SENIOR COUNSEL FOR
SRI K S NARAYANASWAMY, ADVOCATE FOR R4
VIDE ORDER DATED 11.02.2019 R5 IS DELETED
R6 SERVED)
THESE WRIT APPEALS ARE FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION NO. 38563-64/2009
3
DATED 21/01/2015.
IN W.A. NOs.774/2015 & 503/2016
BETWEEN
SRI. KRISHNAPPA
S/O SUBBAIAH,
AGED ABOUT 64 YEARS,
R/AT SURDENAPURA VILLAGE,
HESARAGHATTA HOBLI,
BANGALORE NORTH TALUK.
BANGALORE-560088
... APPELLANT
(BY SMT M V SUSHEELA, SENIOR COUNSEL FOR
SRI K S NARAYANASWAMY, ADVOCATE)
AND
1. SMT. P.KAMALA
D/O LATE K PUTTAIAH,
AGED ABOUT 64 YEARS,
R/AT NO.261, SRI SHIVA KRUPA,
1ST 'C' MAIN RAOD,
2ND STAGE, MAHALAKSHMI PURAM,
BANGALORE-560 086.
2. THE STATE OF KARNATAKA,
DEPARTMENT OF REVENUE,
5TH FLOOR, M S BUILDING,
DR. AMBEDKAR ROAD,
BANGALORE-560 001,
REP BY ITS SECRETARY.
3. THE SPECIAL DEPUTY COMMISSIONER,
BANGALORE URBAN DISTRICT,
KEMPEGOWDA ROAD,BANGALORE-560 009.
4. THE ASST. COMMISSIONER,
BANGALORE NORTH SUB DIVSION,
V V TOWERS, PHODIUM BLOCK,
DR.AMBEDKAR ROAD, BANGALORE-560 001.
4
5. SMT HELENE MOREAN
C/O S ALEXANDRA
MAJOR,
PARATHOTTAMM, VAREYAR POST,
KERALA POST - 450038.
6. SMT. RAMYA RAMARATHNAM
W/O RAMARATHNAM,
AGED ABOUT 72 YEARS,
R/AT NO.42/2, KASTHURI RANGA
IYENGAR ROAD, ALWARPETE,
CHENNAIA, TAMIL NADU-600018.
... RESPONDENTS
(BY SRI V SREENIDHI, AGA FOR R1 TO R3
SMT M V SUSHEELA, SENIOR COUNSEL FOR
SRI K S NARAYANASWAMY, ADVOCATE FOR R4
V/O DATED 20.06.17 R5 IS DELETED)
THESE WRIT APPEALS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION NO.38563-564/2009
DATED 21/1/15.
IN W.A . NOs.775/2015 & 128/2016
BETWEEN
SRI. MUNIGURAPPA
S/O MUNIVERAPPA,
SINCE DEAD BY HIS LR
SRI NAGARAJ,
S/O MUNIGURAPPA,
AGED ABOUT 54 YEARS,
R/AT SURDENAPURA VILLAGE,
HESARAGHATTA HOBLI,
BANGALORE NORTH TALUK.
... APPELLANT
(BY SMT M V SUSHEELA, SENIOR COUNSEL FOR
SRI K S NARAYANA SWAMY, ADVOCATE)
5
AND
1. SMT. P.KAMALA
D/O LATE K PUTTAIAH,
AGED ABOUT 64 YEARS,
R/AT NO.261, SRI SHIVA KRUPA,
1ST C MAIN ROAD,
2ND STAGE, MAHALAKSHMI PURAM,
BANGALORE-560 086.
2. THE STATE OF KARNATAKA,
DEPARTMENT OF REVENUE,
5TH FLOOR, M S BUILDING,
DR. AMBEDKAR ROAD,
BANGALORE-560 001,
REP BY ITS SECRETARY.
3. THE SPECIAL DEPUTY COMMISSIONER,
BANGALORE URBAN DISTRICT,
KEMPEGOWDA ROAD,
BANGALORE-560 009.
4. THE ASST. COMMISSIONER,
BANGALORE NORTH SUB DIVISION,
V V TOWERS, PHODIUM BLOCK,
DR.AMBEDKAR ROAD,
BANGALORE-560 001.
5. SMT HELENE MOREAN
C/O S ALEXANDER
AGE MAJOR
PARATHOTTAMA, VAREYAR POST
KERALA STATE
6. SMT. RAMYA RAMARATHNAM
W/O RAMARATHNAM,
MAJOR, R/AT NO.42/2,
KASTHURI RANGA IYENGAR ROAD,
ALWARPETE,CHENNAI, TAMIL NADU.
... RESPONDENTS
(BY SRI PRAKASH T HEBBAR, ADVOCATE FOR R1
SRI V SREENIDHI, AGA FOR R2 TO R4
6
RESPONDENT NO.5 WAS DELETED VIDE C/O DT. 23.1.2012
R6 SERVED)
THESE WRIT APPEALS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION NO.38561-
38564/2009 DATED 21/01/2015.
IN W.A. NOs.588-589/2016
BETWEEN
SMT P KAMALA,
D/O LATE K PUTTIAH,
AGED ABOUT 65 YEARS,
R/A NO 261, SREE SHIVA KRUPA,
1ST C MAIN ROAD,
2ND STAGE, MAHALAKSHMIPURAM,
BANGALORE - 560 086.
... APPELLANT
(BY SRI PRAKASH T HEBBAR, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REVENUE DEPARTMENT
5TH FLOOR, M. S. BUILDING,
DR. AMBEDKAR ROAD,
BANGALORE - 560 001,
REP. BY ITS SECRETARY.
2. THE SPECIAL DEPUTY COMMISSIONER,
BANGALORE URBAN DISTRICT
KANDHYA BHAVANA ,
K. G. ROAD, BANGALORE - 560 001.
3. THE ASSISTANT COMMISSIONER,
BANGALORE NORTH SUB-DIVISION,
VISHVESHWARIAH TOWERS,
PODIUM BLOCK, DR. AMBEDKAR ROAD,
BANGALORE - 560 001.
7
4. SHRI. MUNIGURAPPA,
S/O MUNIVEERAPPA,
MAJOR,
SINCE DEAD BY HIS LRS
SRI NAGARAJ,
S/O MUNIGRURAPPA,
AGED ABOUT 54 YEARS,
R/A SURDENAPURA VILLAGE,
HESARGATTA HOBLI,
BANGALORE NORTH TALUK - 560 003.
5. SMT. RAMYARAMARATHNAM,
W/O RAMARATHNAM,
MAJOR,
NO 42/2, KASTURI RANGA,
IYENGAR ROAD, ALWAR PETE-600 018,
CHENNAI, TAMIL NADU.
... RESPONDENTS
(BY SRI V SREENIDHI, AGA FOR R1 TO R3
SMT M V SUSHEELA, SENIOR COUNSEL FOR
SRI K S NARAYANASWAMY, ADVOCATE FOR R4
V/O DATED 13.04.2017 NOTICE TO R5 IS DISPENSED
WITH)
THESE WRIT APPEALS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION 38561-564/2009
DATED 21/1/2015.
THESE WRIT APPEALS HAVING BEEN HEARD AND
RESERVED ON 02.07.2019 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, DEVDAS J.,
DELIVERED THE FOLLOWING:
8
COMMON JUDGMENT
The writ petitioners and the private respondents in
W.P.No.38563-64/2009 are before this Court calling in
question the order dated 21.01.2015 passed by the
learned Single Judge. Therefore the appeals are heard
together and disposed of by this common order.
2. Section 5 of the Karnataka Scheduled Castes
and Scheduled Tribes (Prohibition of Transfer of Certain
Lands) Act, 1978 (hereinafter referred to as 'PTCL Act'
for short) provides that an application may be made by
any interested party or on information given in writing
by any person or suo motu the Assistant Commissioner,
if satisfied that the transfer of any granted land is null
and void under Sub-Section (1) of Section 4, he may
cause notice to the person affected, give reasonable
opportunity of being heard and, by order take
possession of such land after evicting all persons in
possession thereof in such manner as may be
9
prescribed. One such application was made by Sri
Krishnappa, the appellant in W.A.No.774/2015,
contending that his grandfather Sri Anjanappa was
granted 2 acres of land in Old Sy.No.31/10, New
Sy.No.84 of Sriramanahalli, Hesarghatta Hobli,
Bangalore North Taluk, initially under the Grow More
Food scheme and after confirmation, the grant
certificate was issued to Anjanappa on 03.09.1949, with
a condition of non-alienation for a period of ten years.
It was further contended that though the condition
stipulated in the grant certificate restricts alienation for
a period of ten years, as per the prevailing Rules i.e.,
Government Order No.2828 LR 89-38-10 dated
13.12.1938, lands granted in favour of Depressed Class
persons shall not be alienated forever.
3. It was contended that since Anjanappa sold the
granted land to one Sri H.T.Subba Rao on 29.12.1967,
the first sale and all further transfers were hit by the
10
provisions of Section 4(1) of the Act. The Assistant
Commissioner allowed the application by order dated
22.02.2008 and directed resumption and restoration of
the land in favour of the applicant. When the matter
was taken up in appeal, under Section 5A of the Act,
before the Deputy Commissioner, the appeal was
dismissed. Consequently, the writ petitions came to be
filed and by order dated 21.01.2015, the learned Single
Judge set aside the orders passed by the Assistant
Commissioner and Deputy Commissioner and remitted
the matter back to the Deputy Commissioner to
reconsider the matter on certain facts and on the
question of adverse possession.
4. The grantee (which means the person claiming
under the grantee and the original applicant before the
Assistant Commissioner) contends, in his writ appeal,
that both the fact finding authorities had concurrently
held that there is no dispute on facts and the legal
11
position, therefore, the learned Single Judge could not
have remitted the matter back for reconsideration. On
the other hand, the purchasers (the writ petitioners)
contend that the learned Single Judge, having held that
the issue regarding stipulation of non-alienation for ten
years and the finding of the Assistant Commissioner
being contrary to the condition of stipulation and the
same having been covered by a decision in the case of
Mariyappa Vs. Thimmarayappa1 could not have
remitted the matter for reconsideration.
5. Sri Prakash T.Hebbar, learned Counsel
appearing for the purchasers draws the attention of this
Court to some of the recent decisions of the Hon'ble
Supreme Court, in the case of Vivek M.Hinduja and Ors.
Vs. M.Ashwatha and Ors.2 and Nekkanti Rama Lakshmi
Vs. State of Karnataka and Anr3 to contend that the
application filed by the grantee requires to be rejected
1 ILR 2004 KAR 3298
2
2017 SCC OnLine SC 1858
3
2017 (1) Kar.L.R. 5 (SC)
12
on the ground of delay and laches. It is contended that
the action initiated after a period of 20 years to 25
years, as in the case of Vivek M.Hinduja2 and Nekkanti
Rama Lakshmi3, seeking resumption and restoration,
have been rejected on the ground of enormous delay.
While drawing the attention of this Court to two
decisions of co-ordinate Benches, in the case of Sri.
Narayanappa and Anr. Vs. the Deputy Commissioner &
Ors., in W.A.No.6698-6699/2017, decided on
09.08.2018 and Sri. Nagaraju Vs. M.Vijayakrishna &
Ors., in W.A.No.908/2019 and connected matters,
decided on 12.06.2019, the learned Counsel submits
that in view of the decisions of the Apex Court in Vivek
M.Hinduja2 and Nekkanti Rama Lakshmi3, the writ
petition preferred by the purchasers had to be allowed
and there was no need to remit the matter back to the
Assistant Commissioner.
2
2017 SCC OnLine SC 1858
3
2017 (1) Kar.L.R. 5 (SC)
13
6. Per contra, Smt.M.V.Susheela, learned Senior
Counsel, appearing for the grantee, submits that the
question of limitation in filing an application seeking
resumption and restoration of granted land, under the
Act, does not arise. It is submitted that a co-ordinate
Bench of this Court, in the case of G.M.Venkatareddy &
Anr. Vs. The Deputy Commissioner, Kolar4 had an
occasion to deal with a similar situation, where the
Hon'ble Supreme Court, in the case of Ningappa Vs.
Deputy Commissioner, in Civil Appeal No.3131 of 2007
decided on 14.07.2011, had observed that if
considerable delay occurs, action under the Act cannot
be taken. Heavy reliance had been placed on the order
of the Hon'ble Supreme Court in the case of Ningappa
(supra) and prayers were made in the pending writ
petitions before this Court, to dispose of the matters on
the basis of the order in Ningappa (supra).
4
ILR 2012 (2) KAR 3168
14
7. His Lordship Justice Vikramajit Sen, as he then
was the Chief Justice of this Court, writing the
judgment for the Division Bench, observed that when a
condition of non-alienation is stipulated in the grant,
title of land in question has not been absolutely granted
to the grantee. Their title by adverse possession against
the State was for a period of over 30 years prior to the
date of coming into force of the Act. It was therefore
held that transfer made in contravention to the
conditions would necessarily mean that the grantee
cannot give a better title than what he had, to the
purchaser and that title has the burden of non-
alienation either for a particular period or for all period
to come. If any sale is effected contrary to those
provisions, the same would enable the authorities to
resume the lands in question. Having regard to Section
5(3) of the Act, it was held that a legal fiction is enacted
in sub-section (3) of Section 5 to state that if a person is
found to be in possession of the granted land, then, said
15
person should be regarded as a person who has
acquired the granted land by transfer. A presumption
lies, unless the contrary is proved, that such person has
acquired the land by a transfer which is null and void.
Having discussed the provisions of the Act and various
decisions of the Apex Court, it was held that dismissal
of an application or writ petition on the ground of laches
is irreconcilable with the elaboration and enunciation of
the law of adverse possession made previously by larger
Benches. Further more, it was submitted that the
decision in G.M.Venkatareddy4 was sought to be
assailed before the Hon'ble Supreme Court in SLA
(C)Nos.17985/2012 and 23874/2012. By order dated
16.07.2012, the Hon'ble Supreme Court declined to
interfere and dismissed the Special Leave Appeals,
holding as under:
"......carefully perused the well crafted
and well reasoned judgment of the
Division Bench of the High Court and are
4
ILR 2012 (2) KAR 3168
16
convinced that the learned Single Judge
and the Division Bench did not commit
any error by refusing to entertain the
petitioner's challenge to the orders passed
by the competent authority and the
appellate authority respectively.
The Special Leave Petition is
accordingly dismissed."
Similarly SLA (C) No.23874/2012 was also
dismissed.
8. The learned Senior Counsel submits that the
learned Single Judge erred in placing reliance on the
decision of a Division Bench of this Court in the case of
Mariyappa /vs./N.Thimmarayappa1, on the question of
adverse possession, since the question of adverse
possession in relation to the provisions of the Act stood
emphatically decided by the Hon'ble Supreme Court in
the case of D.N.Venkatarayappa And Another /vs./ State
of Karnataka And Others5, wherein it was held that the
1 ILR 2004 KAR 3298
5
(1997) 7 SCC 567
17
purchaser is required to plead and prove that he/she
disclaimed the title under which he/she came into
possession, set up adverse possession with necessary
animus of asserting open and hostile title to the
knowledge of the true owner and the latter allowed the
farmer, without any let or hindrance, to remain in
possession and enjoyment of the property, adverse to
the interest of the true owner until the expiry of the
prescribed period. The classical requirement of adverse
possession is that it should be nec vi, nec clam, nec
precario. Further more, having regard to the decisions
of the larger bench of the Hon'ble Supreme Court in the
case of Manchegowda And Others /vs./ State of
Karnataka And Others6, Their Lordships in
R.Chandevarappa And Others /vs./ State of Karnataka7
held that in the context of the Act, while considering the
claim of adverse possession of the purchaser of a
granted land from the original grantee, the person who
6
(1984) 3 SCC 301
7
(1995) 6 SCC 309
18
comes into possession under colour of title from original
grantee, if he intends to claim adverse possession as
against the State, such a person must disclaim his title
of the State and the State had not taken any action
thereon within the prescribed period. It is therefore
submitted that the learned Single Judge could not have
remitted the matter back to the Deputy Commissioner
for reconsideration on the question of adverse
possession.
9. The learned Senior Counsel further submits that
the writ petition was erroneously allowed by the learned
Single Judge on 21.01.2015. The petition was not
allowed on the ground of delay and laches. In fact, such
a contention was not put forth before the learned Single
Judge. It is submitted that had the said question of
delay and laches been put forth before the learned
Single Judge, in view of the unequivocal opinion as on
the date of the decision in the writ petition, such a
plea would have been negatived. The learned Senior
19
Counsel submits that as a routine, the ground of delay
and laches were taken by the purchasers in all the
petitions and the same have been negatived by this
Court and by the Hon'ble Supreme Court, until the
decision of the Apex Court in the case of Nekkanti Rama
Lakshmi3.
10. The learned Senior counsel further
submits that the purchasers should not be allowed to
take advantage of the recent decisions in Nekkanti3 and
Vivek Hinduja2, since the question of delay and laches
were never raised or argued before the fact finding
authorities or the learned Single Judge. Indeed, the
grantee is taken by surprise that the question of delay
and laches is raised for the first time before this Court,
that too because of the latest decision in the case of
Nekkanti3 and Vivek Hinduja2. Even otherwise, it is
submitted that the decisions of the Apex Court in the
case of Nekkanti3 and Vivek Hinduja2 should not be
3
2017 (1) KAR.L.R. 5 (SC)
2
2017 SCC OnLine SC 1858
20
taken or read in the manner that without affording
an opportunity to the grantee to explain the delay, if
any, the decisions could be made applicable and
the grantee who has succeeded before the fact finding
authorities should be shown the door. It is therefore
submitted that the minimum that is required is to
afford an opportunity under the principles of natural
justice, to the grantee to explain the delay, if any.
11. We have heard Sri Prakash T.Hebbar,
learned counsel for the purchasers and Smt.
M.V.Susheela, learned Senior Counsel for the grantee.
We have perused the writ papers and have given
anxious consideration to the submissions made by the
learned counsels.
12. The learned Single Judge was of the opinion
that when the stipulation in the grant certificate
restricted alienation for a period of 10 years, the
Assistant Commissioner could not have relied upon the
21
Rules to hold that a restriction covenant of 'non-
alienation forever' could not be read into the grant
certificate. The matter was remitted back to the Deputy
Commissioner to consider the question of adverse
possession raised by the purchasers. As rightly pointed
out by the learned Senior Counsel, the question of
adverse possession in the context of PTCL Act has been
authoritatively answered by the Hon'ble Supreme Court
in various cases, including D.N.Venkatarayappa5 and
R.Chandevarappa7. Therefore, remittance for
reconsideration on that ground was not warranted. On
the other contention of whether ten years of non-
alienation is applicable or non-alienation 'forever' is
applicable to a grant made under 'Grow More Food
Scheme' or any other grant for that matter has also
been authoritatively settled by the Hon'ble Supreme
5
(1997) 7 SCC 567
7
(1995) 6 SCC 309
22
Court in the case of Guntaiah And Others /vs./
Hambamma and Others8.
13. Guntaiah8, explicitly holds that the
purchaser has no locus standi to challenge any of the
terms of a grant and intendment of the Act did not
infringe Article 19(1)(f) of the Constitution. It was held
that the prohibition regarding alienation is a restrictive
covenant binding on the grantee. The grantee is not
challenging that condition. In all these proceedings,
challenge is made by the third party who purchased the
land from the grantee. The third party is not entitled to
say that the conditions imposed by the grantor to the
grantee were void. As far as contract of sale is
concerned, it was entered into between the Government
and the grantee and at that time the third party
purchaser has no interest in such transaction. In the
case of Maj. Gen.J.K.Koshy and The Assistant
Commissioner, Bangalore in W.A. No.16558/2011
8
(2005) 6 SCC 228
23
disposed of on 11.07.2012, it has been held that if the
period of non-alienation imposed in the grant is
contrary to the Rules, the Rules shall prevail. In fact
that was the position of law declared in Siddalingaiah
vs. State of Karnataka9, which was followed in many
other matters. Therefore, no fault could be found in the
decision of the fact finding authority that the period of
non-alienation provided under the prevailing Rules
should be made applicable.
14. We shall now consider the submissions
regarding the application of the decision of the Apex
Court in the case of Nekkanti3 and Vivek Hinduja2, to
the present case. In this regard, a few facts which are
germane, are required to be looked into. We have
perused the grounds urged in the writ petition. It is
found at paragraph No.12 in the grounds raised by the
purchasers, in W.P.No.38561-38564/2009, it is stated
9
ILR 1989 KAR 2311
3 2017 (1) KAR. L.R. 5 (SC)
2
2017 SCC OnLine SC 1858
24
that the application made by the grantee, seeking
resumption and restoration of the granted land after a
period of 30 years, was barred by law of limitation and
the application ought to have been dismissed for delay
and laches. But, such a ground is not taken in the
appeal, before this Court. The learned counsel for the
purchasers, fairly conceded that he is not aware as to
whether the plea of delay and laches were raised before
the Assistant Commissioner. It is evident from the
orders passed by the Assistant Commissioner that the
question of delay and laches was neither raised nor
considered.
15. The decision in G.M.Venkatareddy4 has been
pressed into service with all vehemence. As noted
above, the decision of the co-ordinate bench in
G.M.Venkatareddy4 has been upheld by the Hon'ble
Supreme Court on more than one occasion. However,
we find that the SLP's seeking to assail the decision in
4
ILR 2012 (2) KAR 3168
25
G.M.Venkatareddy4 have been dismissed at the
threshold. While the Hon'ble Supreme Court has
specifically overruled the decisions of this Court in the
case of R.Rudrappa /vs./ The Deputy Commissioner
& Others10; Maddurappa /vs./ State of Karnataka11
and G.Maregouda /vs./ Deputy Commissioner12,
Chitradurga District, which had held that there is no
limitation provided by Section 5 of the PTCL Act and
therefore an application can be made at any time,
stands overruled.
16. In Vivek Hinduja2, the Hon'ble Supreme
Court has also negatived the submission that the outer
limit for initiating action should be 30 years, in view of
the law declared in Manchegowda6 and Sunkara
Rajayalakshmi and others /vs./ State of Karnataka13.
4
ILR 2012 (2) KAR 3168
10
2000 (1) KLJ 523
11
2006 (4) KLJ 303
12
2000 (2) KLJ Sh. N.4B
2
2017 SCC OnLine SC 1858
6
(1984) 3 SCC 301
13
(2009) 12 SCC 193
26
It was held that reliance placed on the observations in
Manchegowda6 and Sunkara Rajayalakshmi13 are not
apposite and are made with reference to period of
prescription in respect of Government properties under
the Limitation Act, 1963. Therefore, unless and
until the decisions in Nekkanti3 and Vivek Hinduja2
are reconsidered, either in the light of the decision of
the co-ordinate bench in G.M.Venkatareddy4, or for any
other reason, this Court is bound by the decision of the
Hon'ble Apex Court, in the case of Nekkanti3 and Vivek
Hinduja2.
17. However, we find sufficient force in the
argument of the learned Senior Counsel that in a
subsequent judgment, in the case of Satyan /vs./ Deputy
Commissioner and others14 decided on 30.04.2019, the
Hon'ble Supreme Court has held that a delay of eight
years by itself cannot come in the way of competent
6
(1984) 3 SCC 301
13
(2009) 12 SCC 193
3 2017 (1) KAR. L.R. 5 (SC)
2
2017 SCC OnLine SC 1858
4
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authority taking the action, as limitation principles
would not apply, as observed in Amrendra Pratap Singh
/vs./ Tej Bahadur Prajapati and others15 with reference
to the decisions in Nekkanti3 and Vivek Hinduja2, Their
Lordships held that those cases involved huge gaps of
around 20 to 30 years, and in that context, held that
delay of 8 years could not be held to term the action as
void, considering that it is in respect of a beneficial
legislation for the Scheduled Castes and Scheduled
Tribes community. Though there is considerable force in
the submission of the learned Senior Counsel that since
absolute title has not vested in the grantee and there is
violation of condition, the State may take steps within a
period of 30 years to recover the land, failing which any
interested person may move an application and seek
resumption in favour of the State in order to enable the
State to regrant the land in favour of any other SC/ST
15
AIR 2004 SC 3782
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person, within a reasonable period, we feel such
submissions may be made before the Hon'ble Supreme
Court.
18. The learned Senior Counsel has drawn the
attention of this Court to the observations of the Hon'ble
Supreme Court in the case of Amrendra Pratap Singh15
where it was held that the prescription of the period of
12 years in Article 65 of the Limitation Act becomes
irrelevant sofar as the immoveable property of a tribal is
concerned. The Tribal need not file a civil suit which will
be governed by law of limitation; it is enough if he or
any one on his behalf moves the State or the State itself
moves into action to protect him and restores his
property to him. To such an action neither Article 65
nor Section 27 of the Limitation Act thereof would be
attracted. It was categorically held that acquisition of
title in favour of a non tribal by invoking the doctrine of
adverse possession over the immoveable property
15
AIR 2004 SC 3782
29
belonging to a tribal, is prohibited by law and cannot be
countenanced by the Court. Though the provisions of
the Orissa Scheduled Areas Transfer of Immovable
Property (By Scheduled Tribes) Regulation, 1956, which
fell for consideration in Amrendra Pratap Singh15 are
akin to the provisions of the PTCL Act, we have to bear
in mind that the decisions in Nekkanti3 and Vivek
Hinduja2and Satyan14 have dealt with the provisions of
the PTCL Act. It is by now well settled that a judicial
decision is an authority for what it actually decides and
not for what can be read into it by implication or by
assessing an assumed intention to the judges, and
inferring from it a proposition of law which the judges
have not specifically laid down in the pronouncement.
19. Similarly, the decision of a larger bench of
the Hon'ble Supreme Court in the case of Rajasthan
Housing Board /vs./ New Pink City Nirman Sahakari
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Samiti Limited16, which was relied upon by the
learned Senior Counsel does not deal with the question
as to whether an application made by a grantee seeking
resumption and restoration of granted land requires to
be made within a reasonable period.
20. A Constitutional Bench of the Hon'ble
Supreme Court, in the case of Ittyavira Mathai /vs./
Varkey Varkey and another17 held that where a
barred suit was entertained and a decree is passed, the
said decree cannot be treated as a nullity and ignored in
subsequent litigation. If the party aggrieved does not
take appropriate steps to have that error corrected, the
erroneous decree will hold good and will not be open to
challenge on the basis of being a nullity. That being the
position with respect to a suit where limitation is
prescribed, we are of the considered opinion that a
purchaser, who is a respondent before the Assistant
16 AIR 2015 SC 2126
17 AIR 1964 SC 907
31
Commissioner should have raised a plea that the
application should be rejected on account of delay and
laches. The decision on merits by the Assistant
Commissioner cannot be dismissed as a nullity.
21. Similarly, in a situation where a plea of
limitation was not raised at the earliest instance, an
application seeking to raise the question of limitation
was permitted to be made even at the appellate stage or
before the Apex Court in a Special Leave Application.
Reference may be made to larger bench decisions in the
case of Management of the State Bank of Hyderabad
/vs./ Vasudev Anant Bhide18, and Town Municipal
Council, Athani /vs./ Presiding Officer, Labour
Courts, Hubli And Others19. In that context, in the
case of Town Municipal Council, Athani19, notice of
such application, seeking to raise the plea of limitation,
was served on the respondent well in time, so that, by
18 AIR 1970 SC 196
19 AIR 1969 SC 1335
32
the time the appeals came up for hearing they knew this
point was sought to be raised by the appellant. Their
Lordships held that a question of limitation raises a plea
of want of jurisdiction and, in these cases, this question
could be decided on the basis of the fact on the record,
being a pure question of law.
22. While considering the words "sufficient cause",
as provided in Order XXII Rule 9(2) (3) of the Code of
Civil Procedure, the Hon'ble Supreme Court, in the case
of Balwant Singh /vs./ Jagdish Singh and others20,
held that liberal construction of the expression
"sufficient cause" is intended to advance substantial
justice which itself pre supposes no negligence or
inaction on the part of the applicant, to whom want of
bonafide is imputed. The expression "sufficient cause"
implies the presence of legal and adequate reasons. The
"sufficient cause" should be such that it persuades the
Court, in exercise of its judicial discretion, to treat the
20 (2010) 8 SCC 685
33
delay as an excusable one. It would be apposite to
notice the observations of the Hon'ble Supreme Court in
the case of Thirumalai Chemicals Limited /vs./ Union
of India and others21, wherein, on the question of law
of limitation, it was held that law of limitation is capable
of effectively depriving persons of accrued rights and
therefore, they need to be approached with caution.
23. Time and again, the Hon'ble Supreme Court
has held that there cannot be straight jacket formula to
decide as to what is a reasonable period for filing an
application or a writ petition, where there is no
prescription of limitation. What is 'reasonable', depends
on the facts and circumstances of each case and the
statutory provisions governing a particular case. To
give an illustration, if a person is granted land in the
year 1975 and in violation of the terms of grant,
alienates the land in the year 1980 and dies
immediately thereafter, leaving behind a minor son as
21 (2011) 6 SCC 739
34
his sole legal heir and the son makes an application
under Section 5 of the Act, in the year 2000, a few years
after attaining majority, the question that begs
consideration is whether delay of 20 years in filing the
application could be rejected on the ground of
unreasonable delay or without sufficient cause?
Obviously, the answer would be that sufficient cause is
shown. There are any number of precedents where
delay of more than 20 years have been condoned in
matters relating to payment of compensation under
Land Acquisition Act and the like.
24. As noted earlier, there is nothing on record
to suggest whether the purchaser raised an objection or
plea regarding delay and laches, before the Assistant
Commissioner. On the face of the record, it is evident
that the grantee was not called upon to explain the
delay. The least that is expected, on the principles of
audi alteram partem is that an opportunity should be
given to the grantee to explain the delay. The grantee, if
35
afforded such an opportunity, may file an affidavit along
with cogent evidence and such an explanation may be
examined, which would satisfy the basic tenets of law.
25. In the light of the above, we are of the
opinion that the matter needs to be remanded to the
learned Single Judge, for the purpose of affording an
opportunity to the applicant (Sri Krishnappa) to file an
affidavit explaining the reasons for delay, along with
documentary evidence, if necessary. It is for the learned
Single Judge to decide, based on the explanation
offered and material placed on record, as to whether
the application was within reasonable time and if not,
whether "sufficient cause" is shown to condone the
delay.
We therefore proceed to pass the following:
:ORDER:
(i) The impugned order passed by the learned Single Judge is quashed and set aside.
36(ii) The matter is remitted back to the learned Single Judge for the purpose of deciding the question of delay.
SD/-
JUDGE SD/-
JUDGE JT/KLY