Karnataka High Court
Amudha V vs Assistant Commissioner on 26 June, 2023
-1-
NC: 2023:KHC:21984
WP No. 18482 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 18482 OF 2017 (SC-ST)
BETWEEN:
1. AMUDHA V.,
WIFE OF SRI. P. VENKATESH,
AGED ABOUT 29 YEARS,
2. P. VENKATESH,
SON OF SRI. PAVADE GOWNDER,
AGED ABOUT 31 YEARS,
PETITIONERS NO.1 AND 2 ARE
RESIDING AT NO.224,
5TH CROSS, 1ST MAIN,
BHASHAM NAGAR,
SRIRAMPURAM POST,
Digitally signed by
LAKSHMINARAYAN BANGALORE - 560 021.
N
Location: High
Court of Karnataka 3. V. SANGEETHA,
WIFE OF SRI. MOHAN,
AGED ABOUT 37 YEARS,
RESIDING AT NO.224,
5TH CROSS, BASHIM NAGAR,
SRIRAMPURAM POST,
BANGALORE - 560 021.
4. VIJAY SHANKAR RAI,
SON OF LATE SRI. RAJENDRA RAI,
-2-
NC: 2023:KHC:21984
WP No. 18482 of 2017
AGED ABOUT 71 YEARS,
RESIDING AT CARE OF AKHILESHWAR RAI,
NO.14, 6TH CROSS,
MODI GARDEN, J.C. NAGAR,
BANGALORE - 560 006.
5. V. VANITHA,
WIFE OF SRI. VIJAY KUMAR,
AGED ABOUT 36 YEARS,
RESIDING AT NO.167,
4TH CROSS, BASHIM NAGAR,
SRIRAMPURAM POST,
BANGALORE - 560 021.
6. G. MUNIYAMMA,
WIFE OF SRI. LAKSHMANAN,
AGED ABOUT 43 YEARS,
RESIDING AT NO.167,
4TH CROSS, BHASHAM NAGAR,
SRIRAMPURAM POST,
BANGALORE - 560 021.
7. NAMITHA N.,
WIFE OF SRI. K. GOPINATH,
AGED ABOUT 36 YEARS,
R/A 3/304, NARASAMMA COLONY,
NEAR OLD HUDCO POLICE STATION,
HOSUR - 635 109.
8. SYED WAHEED,
AGED ABOUT 42 YEARS,
S/O. LATE SYED DASTGIR,
RESIDING AT 204, 34TH CROSS,
9TH MAIN ROAD, YARAB NAGAR,
BANASHANKARI,
BANGALORE - 560 070.
-3-
NC: 2023:KHC:21984
WP No. 18482 of 2017
9. SHAHINA W.,
AGED ABOUT 42 YEARS,
S/O. LATE SYED DASTGIR,
RESIDING AT 2ND CROSS,
VINAYAKA LAYOUT,
HULIMANGALA VILLAGE,
JIGANI HOBLI, ANEKAL TALUK,
BANGALORE - 560 105.
10. S. MADANRAJ,
AGED ABOUT 36 YEARS,
SON OF R.S. SADASIVAM,
RESIDING AT NO.5,
BRUCE DITTNAR STREET,
FORDE, CANBERRA,
ACT 2914, AUSTRALIA,
REPRESENTED BY HIS
POWER OF ATTORNEY HOLDER
R.S. SADASIVAM,
AGED ABOUT 65 YEARS,
SON OF DR. R.K. SUBBURAYALU,
RESIDING AT NO.23/2,
NEW SHANKARANPALAYAM ROAD,
SANKARANPALAYAM, VELLORE,
TAMIL NADU - 632 001.
11. MUNIRATHNA,
AGED ABOUT 36 YEARS,
WIFE OF MAHESH,
RESIDING AT TIRUPALYA VILLAGE,
ELECTRONIC CITY POST,
ANEKAL TALUK,
BANGALORE - 560 099.
...PETITIONERS
(BY MS. ATHULYA M.P., ADVOCATE FOR
SRI. KASHYAP N. NAIK, ADVOCATE)
-4-
NC: 2023:KHC:21984
WP No. 18482 of 2017
AND:
1. ASSISTANT COMMISSIONER,
BANGALORE SOUTH SUB - DIVISION,
VISHWARAYYA TOWERS,
DR. AMBEDKAR VEEDHI,
BANGALORE - 560 001.
2. THE TAHSILDAR,
ANEKAL TALUK,
ANEKAL - 562 101.
3. PAPAMMA,
MAJOR,
WIFE OF SRI. MARAPPA,
RESIDING AT HULIMANGALA VILLAGE,
JIGANI HOBLI, ANEKAL TALUK,
BANGALORE DISTRICT - 562 106.
DEAD, REPRESENTED BY HER LRS
3(a) NARAYANASVAMI,
AGED ABOUT 28 YEARS,
SON OF LATE MARIAPPA @ MARAPPA,
RESIDING AT HULIMANGALA VILLAGE,
JIGANI HOBLI, ANEKAL TALUK,
BANGALORE DISTRICT - 562 106.
3(b) ANIL KUMAR H.M.,
AGED ABOUT 32 YEARS,
SON OF LATE MARIAPPA @ MARAPPA,
RESIDING AT HULIMANGALA VILLAGE,
JIGANI HOBLI, ANEKAL TALUK,
BANGALORE DISTRICT - 562 106.
-5-
NC: 2023:KHC:21984
WP No. 18482 of 2017
3(c) ANITHA,
AGED ABOUT 34 YEARS,
DAUGHTER OF MARIAPPA @ MARAPPA,
RESIDING AT MENASIGANAHALLI,
ANEKAL TALUK,
BANGALORE DISTRICT - 562 106.
3(d) SAPPIDI ANNAPOORNA,
AGED ABOUT 30 YEARS,
DAUGHTER OF MARIAPPA @ MARAPPA,
RESIDING AT NO.3 - 98,
MAIN ROAD, KOTAPELLE,
ANANTAPUR,
ANDHRA PRADESH - 515 571.
3(e) C. MARIYAPPA,
AGED ABOUT 65 YEARS,
SON OF CHOWDAPPA,
RESIDING AT 342,
NEAR YELLAMMA TEMPLE,
DODDA THOGURU,
BANGALORE SOUTH,
ELECTRONIC CITY,
BANGALORE - 560 100.
4. SHASHIKALA,
MAJOR,
WIFE OF LATE SRI. PRAKASH REDDY,
RESIDING AT NO.7/12/A,
22ND MAIN, 20TH CROSS,
HSR LAYOUT,
BANGALORE - 560 068.
5. SAFFIR KHAN,
MAJOR,
-6-
NC: 2023:KHC:21984
WP No. 18482 of 2017
SON OF SRI. AHMAD ULLA KHAN,
RESIDING AT SIKARIPALYA,
JIGANI HOBLI, ANEKAL TALUK,
BANGALORE DISTRICT - 562 106.
...RESPONDENTS
(BY SRI. VENKATASATYANARAYAN, HCGP FOR R1 AND R2;
MS. SNEHA NAGARAJ, ADVOCATE FOR R3 (A TO E);
VIDE ORDER DATED: 21/6/2023
NOTICE TO R4 IS DISPENSED WITH)
THIS W.P IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 15.07.2016 PASSED BY R-1 IN CASE NO.
K.SC.ST(A) 37 / 2012- 13 AT ANNEXURE-A. GRANT AN
INTERIM ORDER THAT, PENDING DISPOSAL OF THE ABOVE
W.P. AND PENDING ISSUANCE OF NOTICE TO RESPONDENTS,
THE PETITIONERS RESPECTFULLY PRAY THAT THIS HON'BLE
COURT MAY BE PLEASED TO STAY THE OPERATION AND
EXECUTION OF THE IMPUGNED ORDER DATED 15.07.2017
PASSED BY THE R-1 IN CASE NO.K.SC.ST(A) 37 / 2012- 13 AT
ANNEXURE-A.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the subsequent purchasers assailing the order passed by respondent No.1/Assistant Commissioner, wherein the sale deed executed by the widow of the original grantee in favour of one T.Gopaladas dated 27.09.1968 is annulled and the land is ordered to be restored to the government. The -7- NC: 2023:KHC:21984 WP No. 18482 of 2017 present petitioners approached this Court without exhausting the remedy available to them under Section 5(a) of the PTCL Act.
2. Before I advert to the facts of the present case, it would be useful to refer to the judgments rendered by the Apex Court on this issue in Nekkanti Rama Lakshmi .vs. State of Karnataka and another 1 and Vivek M. Hinduja .vs. M. Aswatha2. It would be also useful to refer to the judgment rendered by a Co-Ordinate Bench of this Court in W.P.No.50446 of 2012, which was confirmed by the Division Bench in W.A.No.16/2021 disposed of on 05.04.2021.
3. The Apex Court in the case of Nekkanti Rama Lakshmi, while interpreting Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (for short "PTCL Act") had an occasion to examine the point of limitation wherein interested person can file appropriate application 1 (2020) 14 SCC 232 2 (2019) 1 Kant LJ 819 SC -8- NC: 2023:KHC:21984 WP No. 18482 of 2017 seeking annulment of sale as void under Section 4 of the PTCL Act. The Apex Court by reiterating the principles laid down in Chhedi Lal Yadav .vs. Hari Kishore Yadav3 and also in the case of Ningappa .vs. Deputy Commissioner and others4 has held that where Statute did not prescribe the period of limitation, the provisions of the Statute must be invoked within a reasonable time. The Apex Court was of the view that the authorities have to give due regard to the period of time within which action has to be taken by the interested person. The Apex Court was of the view that it is well within the discretion of the competent authorities not to annul the alienations where there is inordinate delay in initiating action by the interested persons under Sections 4 and 5 of the PTCL Act. The co-ordinate Bench of this Court in W.P.No.50446/2012 disposed of on 24.1.2020 declined to entertain the application filed by the original grantee where there was a delay of ten years. This Court was of the view that the 3 (2018) 12 SCC 527 4 (2020) 14 SCC 236 -9- NC: 2023:KHC:21984 WP No. 18482 of 2017 application itself was not maintainable since the same was not filed within a reasonable time. While recording the finding, this Court relied on the judgment of the Apex Court in Ningappa .vs. Deputy Commissioner and others, where the Apex Court had declined to entertain the application which was submitted after nine years seeking restoration of land under Sections 4 and 5 of the PTCL Act. The judgment rendered by a co-ordinate Bench of this Court in W.P.No.50446/2012 is affirmed by the Division Bench of this Court in W.A.No.16/2021.
4. The principles laid down by the Apex Court in Chhedi Lal Yadav .vs. Hari Kishore Yadav 5 [(2018) 12 SCC 527] is also squarely applicable to the present case on hand. The Apex Court was of the view that if there is inordinate, unexplained and unjustified delay on the part of the applicant in seeking restoration of the land, such inaction would create a right in favour of other party. Therefore, the Apex Court was of the view that time must be reckoned reasonably, not only in order to preserve the 5 (2018) 12 SCC 527
- 10 -
NC: 2023:KHC:21984 WP No. 18482 of 2017 rights and advantages which party possesses but equally to protect each party from losses he ought not to suffer. The registered sale deeds are public documents and after verifying the public documents, if citizens enter into further transaction believing such public documents to be genuine, the subsequent alienations cannot be set at naught by showing leniency to aggrieved party who has slept over his rights, if rights are crystallized on account of inaction on the part of the original grantee. The said application has to be rejected on this count also.
5. The facts leading to the case are as under:
The land in question was granted to one Pillaga vide order dated 02.02.1930. After the death of the original grantee, his widow, Balamma, inherited the property and she in turn sold 1 acre out of 2 acres 2 guntas in favour of T.Gopaladas under registered sale deed dated 27.09.1968. The alienations were found to have been made by the widow of the original grantee after the expiry of non- alienation period. After the death of first purchaser, his
- 11 -
NC: 2023:KHC:21984 WP No. 18482 of 2017 son Narayanaswamy inherited the property. Narayanaswamy, in turn sold to one Narayana Reddy and Renukamma under registered sale deed dated 13.03.1986. A person by name Pillaga s/o Muniga, who claims to be the grandchild of the original grantee, initiated action by filing an application under Section 5 of the PTCL Act. The said petition was rejected on 15.04.1991.
6. Narayana Reddy and Renukamma, along with their son in turn sold to one G.S.Prakash Reddy on 31.03.2006. G.S.Prakash Reddy thereafter appears to have formed sites and sold the property in favour of petitioners by executing various sale deeds which date between 2009-2010. Respondent No.3/Papamma, claiming to be the grand daughter of one Pillaga, has again filed restoration petition in 2012-13. The restoration is sought against one G.S.Prakash Reddy who is petitioners vendor. Though husband of respondent No.4 has further transferred the granted land in favour of petitioners herein restoration is sought only against petitioner's vendor, and
- 12 -
NC: 2023:KHC:21984 WP No. 18482 of 2017 the said order is allowed in part by respondent No.1/Assistant Commissioner. Respondent No.1/Assistant Commissioner, without taking cognizance of inordinate delay of 44 years has entertained the petition.
7. The question that needs to be examined by this Court is as to whether the resumption of land to the State on the premise that the alienation done by the widow of the original grantee in 1968 was in contravention of the provisions of the PTCL Act is sustainable in the light of the law laid down by the Apex Court in the case of Jagadish vs. State of Karnataka6, Nekkanti Rama Lakshmi, Vivek M. Hinduja and Chhedi Lal Yadav. This Court also needs to examine whether the petitioners who are not parties to the proceedings before respondent No.1/Assistant Commissioner can maintain the writ petition without exhausting a remedy under Section 5(a) of the PTCL Act.
6 (2021) 12 SCC 812
- 13 -
NC: 2023:KHC:21984 WP No. 18482 of 2017
8. Heard learned counsel for the petitioners, learned High Court Government Pleader and learned counsel for respondents No.3(a to e).
9. Learned counsel for the respondents has filed a memo signed by respondents No.3(a to e) and in the said memo, the contesting respondents, at whose instance the granted land is now forfeited to the State government, intend to withdraw their claim. These memos are taken on record.
10. Regarding maintainability of the writ petition by the purchasers without availing themselves of the remedy of an appeal under Section 5 of the PTCL Act. Before I proceed to decide this issue, it would be useful for this Court to refer to the principles laid down by the Apex Court in the case of Whirlpool Corporation vs. Registrar of Trademarks, Mumbai and others 7, Jayamma and others vs. State of Karnataka 8, Harbanslal Sahnia and Another vs. Indian Oil 7 (1998) 8 SCC 1 8 MANU/KA/0764/2021
- 14 -
NC: 2023:KHC:21984 WP No. 18482 of 2017 Corporation Ltd and others9. I have taken cognizance of the law laid down by the Apex Court in the above cited judgments. The Co-ordinate Bench of this Court in the case of Jayamma vs. State of Karnataka (supra) had an occasion to deal with an identical case where a purchaser of granted land had knocked the doors of the writ court without availing a remedy under Section 5(a) of the PTCL Act. The Co-ordinate Bench, referring to the Apex Court judgements, held that an alternate remedy will not operate as a bar in at least three contingencies: where the petition is filed for enforcement of any fundamental rights, where there has been a violation of natural justice, or where the order of proceedings is wholly without jurisdiction. In the light of the law laid down by the Apex Court in the judgment cited supra, let us test the order of forfeiture passed by respondent No.1/Assistant Commissioner in the present case on hand.
11. The grant is made in 1930. It is borne out from the records that the restriction on the grantee from 9 (2003) 2 SCC 107
- 15 -
NC: 2023:KHC:21984 WP No. 18482 of 2017 alienating the granted land was found to be 15 years. After the demise of the original grantee, his widow meddled with the property and sold the same in favour of one T.Gopaladas on 27.09.1968. Therefore, the alienation is obviously after the expiry of the non-alienation period and before the commencement of the PTCL Act. The issue relating to alienations of a granted land after expiry of the non alienation period and before commencement of the PTCL Act is given a quietus by the Apex Court in the case of Jagadish vs. State of Karnataka (supra). The Apex Court, while dealing with the said issue, has come to the conclusion that the provisions of the PTCL Act are not applicable to those alienations after the expiry of alienation period and before commencement of the Act.
12. If these significant details are taken into consideration, then I am of the view that, in the light of law laid down by the Apex Court in the case of Jagadish vs. State of Karnataka (supra), the very initiation of proceedings under Sections 4 and 5 of the PTCL Act by
- 16 -
NC: 2023:KHC:21984 WP No. 18482 of 2017 respondent No.1/Assistant Commissioner is without jurisdiction. The second ground on which the jurisdiction of the Assistant Commissioner is taken away is on account of an earlier order where a restitution petition was rejected, which is evident from Annexure-D.
13. The present petitioners, who are bonafide purchasers and have acquired right and title after carefully examining the public documents, are bound to be protected by the writ courts. Therefore, I am of the view that this is a fit case where this Court can exercises its judicial discretion in favour of petitioners. I am of the clear view that the writ petition is maintainable, and this Court can take cognizance of frivolous proceedings initiated by the legal heirs of the original grantee. I am of the view that an alternate remedy by itself will constitute a bar in examining the correctness of the impugned order passed by respondent No.1/Assistant Commissioner under Article 226 of the Constitution of India.
- 17 -
NC: 2023:KHC:21984 WP No. 18482 of 2017
14. The jurisdiction of the High Court in entertaining writ petition under Article 226 of Constitution, in spite of the availability of an alternative statutory remedy, is not affected, especially in a case where the authority against whom the writ is sought is shown to have had no jurisdiction or had purported to usurp jurisdiction. This Court can entertain a petition if it is demonstrated that the authority has acted wholly without jurisdiction. This is without prejudice to the rule that where the statue was provided for a hierarchy of appeals, those remedies must first be exhausted and resort to read the remedy must be discouraged. If an order is demonstrated to be totally non est in the eye of law for absolute lack of jurisdiction, the writ Court can entertain a petition under Article 226 of the Constitution.
15. It would need a very strong case, indeed, for this Court to deviate from the principle that where are specific remedies given by the statue, the person who insist upon such a remedy can avail of the process as
- 18 -
NC: 2023:KHC:21984 WP No. 18482 of 2017 provided in the statue and in no other manner. This Court is satisfied that the alternative statutory remedy is either too dilatory or it is difficult to get a quick relief, High Court should not interfere.
16. If the first sale is found to be way back in 1968 and the granted land has changed several hands, grantees cannot repeatedly file petitions seeking restoration after suffering an order vide Annexure-D. Therefore, I am of the view that a writ petition filed by the purchasers without availing alternate remedy of an appeal is very much maintainable for the reasons stated supra.
17. The widow of the original grantee sold the land in 1968, while a restoration petition was filed by the legal heir of the original grantee in 2012-13. There is a delay of 44 years. If these aspects are taken into consideration, then I am of the view that respondent No.1/Assistant Commissioner erred in entertaining a stale claim and therefore enquiry initiated by the Assistant Commissioner runs contrary to the law laid down by the Apex Court in
- 19 -
NC: 2023:KHC:21984 WP No. 18482 of 2017 the case of Nekkanti Rama Lakshmi and Vivek M. Hinduja(supra). In the light of the discussion made supra, even otherwise, the restoration petition filed by the legal heirs of the original grantee is liable to be out rightly rejected only on the ground of inordinate delay of 44 years. In the instance case diligence is woefully lacking. Therefore, respondent No.1/Assistant Commissioner ought to have out rightly rejected the petition.
18. It is borne out from the records that the petitioners herein are fourth purchasers. The first sale was in 1968, and the second sale was in 1986. After rejection of restoration proceedings, there is further sale by Narayana Reddy and Renukamma in favour of G.S.Prakash Reddy, who in turn sold to the petitioners herein. Therefore, in the light of law laid down by the Apex Court in the case of Chhedi Lal Yadav(supra), even on this count the legal heirs of the original grantee could not have maintained the petition seeking restoration.
- 20 -
NC: 2023:KHC:21984 WP No. 18482 of 2017
19. The Assistant Commissioner while entertaining the petition has ordered for restoration of the land in favour of the legal heirs of the original grantee. This order is perverse, capricious and patently erroneous. The order of restoration cannot be sustained in light of judgments rendered by the Apex Court which are cited supra. This is nothing short of abuse of process. Therefore, I am of the view that the order is liable to be quashed by this Court.
20. For the reasons stated supra, I pass the following:
ORDER
(i) The writ petition is allowed;
(ii) The order dated 15.07.2016 passed by the respondent No.1/Assistant Commissioner vide Annexure-A is hereby set aside.
Sd/-
JUDGE hdk