Karnataka High Court
Sri. P. Balaramaiah vs The Deputy Commissioner on 2 June, 2023
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WP No. 12366 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.12366 OF 2021 (SC-ST)
BETWEEN:
SRI. P.BALARAMAIAH
AGED ABOUT 83 YEARS
S/O LATE PUTTA NARASAIAH
R/AT NEAR GUNDANJINEYA SWAMY TEMPLE
KORATAGERE TOWN
TUMUKUR DISTRICT-572129
...PETITIONER
(BY SRI.LEELADHAR H P, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
Digitally
signed by TUMKUR DISTRICT
ALBHAGYA TUMKUR-572 101
Location:
HIGH
COURT OF 2. THE ASSISTANT COMMISSIONER
KARNATAKA MADHUGIRI SUB-DIVISION
MADHUGIRI-572 132
3. SMT.S. N. USHA RAJ
W/O. SRI. K.R. NATARAJ
MAJOR IN AGE
R/AT IRAKASANDRA VILLAGE
KOLALA HOBLI
KORATAGERE TALUK-572 129
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WP No. 12366 of 2021
4. SRI. HANUMANTHARAYAPPA
AGED ABOUT 65 YEARS
S/O. LATE HANUMANTHARAYAPPA
5. SRI. RANGARAJU
AGED ABOUT 58 YEARS
S/O LATE HANUMANTHARAYAPPA
6. SRI. SHIVAKUMAR
AGED ABOUT 56 YEARS
S/O LATE HANUMANTHARAYAPPA
RESPONDENT NOS.4 TO 6
R/AT GOWDAGANAHALLI VILLAGE,
KORATAGERE TALUK,
TUMKUR DISTRICT-572 129
7. SRI. B. RAMESH
AGED ABOUT 51 YEARS
S/O. P. BALARAMAIAH
8. SRI. B RAGHURAM
AGED ABOUT 55 YEARS
S/O. P. BALARAMAIAH
P. CHIKKA HANUMANTHAIAH
SINCE DEAD BY HIS LRS ALREADY
ON RECORD AS RESPONDENT NO.9
9. SRI. NATARAJA
AGED ABOUT 58 YEARS
S/O. P. CHIKKA HANUMANTHAIAH
10. SRI. SHANTHARAMA
AGED ABOUT 57 YEARS
S/O. LATE P. ANJINEYA
11. SRI. A. SRINIVAS
AGED ABOUT 45 YEARS
S/O. LATE P. ANJINEYA
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WP No. 12366 of 2021
12. SRI. A. MANJUNATHA
AGED ABOUT 35 YEARS
S/O. LATE P. ANJINEYA
13. SRI. A. SHIVAKUMAR
AGED ABOUT 40 YEARS
S/O. LATE P. ANJINEYA
A.RAJASHEKHAR
SINCE DEAD BY HIS LRS
ALREADY ON RECORD AS 10 TO 13
SL.NOS.7 TO 13 ARE R/AT
NEAR GUNDANJINEYA SWAMY TEMPLE
KORATAGERE TOWN
TUMUKUR DISTRICT-572 129
...RESPONDENTS
(BY SRI.VENKAT SATYANARAYANA, HCGP FOR R.1 AND R.2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
ENTIRE RECORDS FROM THE OFFICE OF THE R.1 IN RA PTCL
8/2017-18 AND ALSO FROM THE R.2 IN PTCL SR 9/2013-14 AND
DIRECT IN THE FORM OF WRIT AND QUASH THE ORDER DATED
02.12.2020 PASSED BY THE R.1 IN RA (PTCL) 8/2017-18 UNDER
ANNEXURE-A AND ETC.
THIS WRIT PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 12366 of 2021
ORDER
This captioned writ petition is filed by the son of the original grantee questioning the order of respondent No.1
- Deputy Commissioner, who has reversed the order of restoration ordered by respondent No.2 - Assistant Commissioner. Respondent No.1 - Deputy Commissioner has also declined to entertain the appeal filed by son of the original grantee questioning the order passed by the respondent No.2 - Assistant Commissioner on an application filed by the original grantee seeking restoration in the year 1980. The grantee suffered an order at the hands of the respondent No.2 - Assistant Commissioner vide order dated 08.04.1981, wherein the petition filed by the original grantee was rejected way back in the year 1981. The second round of litigation is initiated by the son of original grantee in the year 2017.
2. Facts leading to the case are as under; The subject matter of the petition land is the land bearing Sy. No.10. The petition land was granted to the -5- WP No. 12366 of 2021 petitioner's father vide order dated 20.03.1951. The original grantee namely Putta Narasaiah sold the entire land measuring 4 acres to the father of respondent Nos.3 to 5 under registered sale deed in the year 1967. The alienation is made after expiry of non-alienation clause, which was for a period of 10 years. The original grantee, who is the father of petitioner, sought for restoration of land by filing a petition in the year 1980. The said petition was rejected by the Assistant Commissioner vide order dated 08.04.1981. The present petitioner, who claims to be son of original grantee, by suppressing the earlier order again moved petition seeking restoration of the land. The respondent No.2 - Assistant Commissioner has entertained the second application and has ordered for restoration by holding that the alienation made by original grantee in the year 1967 was in contravention of Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (for short "PTCL Act").
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3. Heard learned counsel appearing for the petitioner and learned HCGP.
4. The claim of the petitioner, who claims to be son of original grantee, has to be rejected on two counts. Firstly, on examining the materials on records, it is forthcoming that the petitioner's father was granted 4 acres of land on 20.03.1951 and restriction was imposed for 10 years from alienating the petition land. The original grantee has sold the entire land in favour of father of respondent Nos.3 to 5 under registered sale deed dated 27.05.1967. The earlier order, which was passed in the year 1980, clearly indicates the non-alienation period was for a period of 10 years. Therefore, this Court would find that the alienation by original grantee was after expiry of prohibition period and before the commencement of 'PTCL Act'.
5. The Hon'ble Apex Court while referring to the para No.24 of the judgment rendered in the case of -7- WP No. 12366 of 2021 MANCHEGOWDA VS. STATE OF KARNATAKA1 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 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 1 1984(3) SCC 301 -8- WP No. 12366 of 2021 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 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 -9- WP No. 12366 of 2021 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."
6. On meticulous examinations of the observations and findings recorded by the Hon'ble Apex Court in the case of MANCHEGOWDA VS. STATE OF KARNATAKA, it is clearly 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
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WP No. 12366 of 2021transfer are clearly found beyond scope and purview of 'PTCL Act'. If the granted land is sold after expiry of prohibition period and before commencement of the 'PTCL Act', the alienation is saved and the grantee cannot proceed under the provisions of 'PTCL Act'. Therefore, respondent No.2 - Assistant Commissioner erred in entertaining the petition and therefore, the order of restoration passed by respondent No.2 - Assistant Commissioner is contrary to the dictum laid down by the Hon'ble Apex Court in the case of JAGADISH VS. STATE OF KARNATAKA (cited supra).
7. The second count on which the petition is also liable to be rejected is that the son of grantee could not have filed a second petition in the year 2013 as the original grantee has already suffered an order in the year 1981, which is evident as per Annexure-H. If the original grantee failed to secure restoration, his legal heir could not have maintained a second application. This aspect is rightly dealt by respondent No.1 - Deputy Commissioner.
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WP No. 12366 of 2021Respondent No.1 - Deputy Commissioner has not only set aside the order of restoration ordered by respondent No.2
- Assistant Commissioner but has also declined to interfere with the order passed by the Assistant Commissioner in the year 1981, wherein the petition filed by the original grantee was rejected. Respondent No.1 - Deputy Commissioner has dismissed the appeal questioning the order dated 08.04.1981 on the ground that the appeal is filed after lapse of 37 years. Therefore, the order passed by respondent No.2 - Assistant Commissioner by entertaining the second application is not at all sustainable.
8. The present proceedings initiated by the legal heirs of original grantee are not sustainable in the light of the principles laid down by the Hon'ble Apex in the case of Nekkanti Rama Lakshmi .vs. State of Karnataka and another2 and Vivek M. Hinduja .vs. M. Aswatha3. In 2 (2020) 14 SCC 232 3 (2019) 1 Kant LJ 819 SC
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WP No. 12366 of 2021the instant case, the original grantee alienated the land in the year 1967. The petition is filed in the year 2014. Therefore, there is a delay of 37 years.
9. The Hon'ble Apex Court in the case of Nekkanti Rama Lakshmi (cited supra) and Vivek M. Hinduja (cited supra) has held that the petition for restoration has to be filed within reasonable period. 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
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WP No. 12366 of 2021under 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.
10. In the light of the discussions made supra, I am of the view that respondent No.1 - Deputy Commissioner was justified in reversing the order of restoration passed by respondent No.2 - Assistant Commissioner. The proceedings initiated by the original grantee are liable to be dismissed on three counts. Firstly, the alienation admittedly being after expiry of prohibition period, the provisions of Sections 4 and 5 of 'PTCL Act' are not applicable. Secondly, the petition filed by the legal heir of original grantee is not maintainable as original grantee's petition seeking restoration of land was rejected in the year 1981. Thirdly, there is an inordinate delay of 37 years. Therefore, respondent No.2 - Assistant Commissioner ought to have rejected the petition on these grounds.
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WP No. 12366 of 2021
11. For the reasons stated supra, I am of the view that the order passed by respondent No.1 - Deputy Commissioner is in consonance with the principles laid down by the Hon'ble Apex Court in the judgments cited supra. Hence, I proceed to pass the following:
ORDER The writ petition is devoid of merits and accordingly, stands dismissed.
Sd/-
JUDGE NBM List No.: 1 Sl No.: 22