Karnataka High Court
Shri Manjunath vs M/S Model Farm Houses Pvt. Ltd., on 10 October, 2018
Equivalent citations: AIRONLINE 2018 KAR 1195
1/17
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 10th DAY OF OCTOBER 2018
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.58219/2016 (SC-ST)
BETWEEN:
Shri. Manjunath
S/o Muniyappa
Aged about 38 years
Kannamangala village
Kasaba Hobli
Devanahalli Taluk.
...Petitioner
(By Mr. Mohana J.S. for
Mr. Mahabaleshwar G.C. Advocate)
AND:
1. M/s. Model Farm Houses Pvt. Ltd.,
No.10/1, Ground Floor
Lakshminarayana complex
Palace Road, Bangalore-560052
Rep. by its Director
Shri. P. Satish Pai
S/o late Narasimha Pai.
2. Deputy Commissioner
Bangalore Rural District
Bangalore-560001.
...Respondents
(By Mr. H. Ramachandra for
Mr. H.R. Ananthakrishnamurthy, Advocate for R1
Ms. Savithramma, HCGP for R2)
Date of Order 10-10-2018 W.P.No.58219/2016
Shri. Manjunath
Vs.
M/s. Model Farm Houses Pvt. Ltd., & Anr.
2/17
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India praying for a writ of Certiorari
quashing the Order dated 27/09/2016, passed by the 2nd
Respondent i.e., Deputy Commissioner and District
Magistrate, Bangalore Rural District in LND.SC/ST(A)60/
2009/10, at Annexure-B & etc.
This Writ Petition coming on for Orders this day, the
Court made the following:-
ORDER
Mr. Mohana J.S. for Mr. Mahabaleshwar G.C. Adv. for Petitioner Mr. H. Ramachandra, for Mr. H.R. Ananthakrishnamurthy, Adv. for R1 Ms. Savithramma, HCGP for R2
1. The petitioner - Shri. Manjunath S/o. Muniyappa, the Legal Representative of the original Grantee belonging to the Scheduled Caste/Scheduled Tribe category has challenged the impugned Order Annexure B passed by the Deputy Commissioner & District Magistrate, Bangalore Rural District, Bangalore on 27/09/2016 in Appeal No.LND.SC/ST(A)60/2009- 10 under Section 5-A of the Karnataka Scheduled Date of Order 10-10-2018 W.P.No.58219/2016 Shri. Manjunath Vs. M/s. Model Farm Houses Pvt. Ltd., & Anr. 3/17 Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as the 'PTCL Act' for short), filed by the purchaser M/s. Model Farm Houses Pvt.Ltd. against Shri. Manjunatha and another.
2. The reasons assigned by the learned Deputy Commissioner in the impugned Order dated 27/09/2016 for allowing the Appeal of the purchaser is quoted below for ready reference:-
"On looking into the records made available, it is a fact that, the subject matter with regard to the land in question has been dealt with on two occasions in case No.LND.SC.ST.88/90-91 on 31-4-1991 as well as in case No.PTCL.SR.53/2002-03 on 22-10-2005. When once the matter is decided by the Authority - the Assistant Commissioner, the same authority cannot take up the matter to deal with once again. (Relying on the decisions reported in Date of Order 10-10-2018 W.P.No.58219/2016 Shri. Manjunath Vs. M/s. Model Farm Houses Pvt. Ltd., & Anr.4/17
1989 Kant. L.J. 209 (R.C. Puttaiah Vs. Deputy Commissioner, Chickamgalur District): 2005 Kant.l.j.3.563 (S. Thipperudrappa vs. State of Karnataka and others). The said orders have not been questioned and/or challenged by anybody. Hence, the proceedings taken up by the Assistant Commissioner, subsequently on the Petition of the 2nd Respondent herein in No.PTCL.SR(DE) 147/2006-07 and passing the order dated 13-7-2009 impugned herein does not stand in the eye of law.
The main contention of the 2nd Respondent is that the earlier alleged
Petitioners i.e., Shri Muniyappa and Smt. Pillamma are fictious persons and they have no any manner of right, title and interest of the land etc., is concerned, it would be relevant to mention that the provisions of Section 5 of the Act enjoin suomoto powers with the Assistant Commissioner muchless any person interested could file Application and it is only at the time of restoration of the land under Section 5(1)(b) of the Act, necessary enquiry will be made and the land Date of Order 10-10-2018 W.P.No.58219/2016 Shri. Manjunath Vs. M/s. Model Farm Houses Pvt. Ltd., & Anr.5/17
will be restored in favour of the legal heirs of the original grantee. (Relied on the decision reported in 2012(1) Kar. L.J. 250 (Maj. Gen.J.K. Koshy, AVSM (Retd.) and another Vs. Assistant Commissioner, Bangalore South Sub Division, Bangalore and others):
"Alienee's plea that person who initiated proceeding is not legal heir of original grantee, held, is a matter for further enquiry by authority for deciding to whom land to be restored after resumption - Plea, held is not relevant for deciding question whether land is granted or not.
Apart from all the above facts, it is an admitted fact by the 1st Respondent as well as is clear from the findings of the Assistant Commissioner, the land in S.No.73-New S.No.142 measuring 1A.00 situated at Kannamangala Village, Kasaba Hobli, Devanahalli Taluk was granted under D.D. Rules during the year 1956-57 in favour of Gudlu Muniyappaas per order No.29/1995- Date of Order 10-10-2018 W.P.No.58219/2016 Shri. Manjunath Vs. M/s. Model Farm Houses Pvt. Ltd., & Anr.6/17
56 dated 20-6-1956 and it is alienated for the first time under the sale deed dated 18-5- 1972 registered as No.629/72-73 in favour of Smt. Akkayyamma i.e., after 15 years from the date of grant. According to the then Rule43(6)(a) (vide Government Notification No.R.5536-56-LR.266-55-8 dated 6th July 1955 - and RC.16328-LR.133-54-14 dated 12-18th July 1956).
(i) Where the grant is made free of cost, that the land granted shall not be alienated for a period of fifteen years from the date of the grant; or
(ii) Where the grant is made for an upset price or for reduced upset price, the land granted shall not be alienated for a period of ten years from the date of the grant.
Thus, the land in question has been alienated after 15 years of non-alienation condition period during the year 1972 much before 1-1-1979 the date on which the Act came into force. According to the decision Date of Order 10-10-2018 W.P.No.58219/2016 Shri. Manjunath Vs. M/s. Model Farm Houses Pvt. Ltd., & Anr. 7/17 reported in ILR 2010 KAR 5011 (Bhemanna Vs. Deputy Commissioner, Chitradurga District, and others); it is held that:
Further Held: Under Section 4(2) two conditions are imposed. One with regard to alienation made prior to 1.1.1979 and another a sale to be effected after commencement of the Act, with effect from 1.1.1979. So far as the granted land which were not alienated even after completion of the period of non-alienation prescribed under the grant would be invalid, if such transfer is taken place without prior permission of the Government. So far as the transaction of sale taken place prior to 1.1.1979 would be valid provided that the alienation period has been completed as per the grant.
Thus, applying the law and principles laid down in the above decision, the provisions of the Act cannot be made applicable and the alienation of the land Date of Order 10-10-2018 W.P.No.58219/2016 Shri. Manjunath Vs. M/s. Model Farm Houses Pvt. Ltd., & Anr. 8/17 under the sale deeds of 1972, 1991 as well as in 2007 cannot be held as null and void.
For the foregoing reasons, in any angle of the matter the Order of the Assistant Commissioner, Doddaballapur Sub Division, Bangalore in No.PTCL.SR(DE)-147/2006-07 dated 13.7.2009 holding the registered sale deeds No.629/72-73 dated 18-5-1972 and No.1150/1994-95 dated 23-8-1994 under which the land in S.No.73- New s.No.142 measuring 1A.00 situated at Kannamangala village, Kasaba Hobli, Devanahalli Taluk is alienated as null and void for the alleged violation of the provisions of the Act, and ordering under Section 5(1)(a) and (b) of the Act to resume the land to Government and restore the same in favour of the legal heirs of the original grantee, does not stand to reason and it is liable to be set aside. Accordingly, it is set aside. Accordingly, it is set aside.
In the result, the Appeal is liable to be allowed.
Accordingly, the Appeal is allowed. Endorse the parties.
Date of Order 10-10-2018 W.P.No.58219/2016 Shri. Manjunath Vs. M/s. Model Farm Houses Pvt. Ltd., & Anr. 9/17 Order pronounced in open Court on this the 27th day of September 2016.
Sd/-
(S. Palaiah) Deputy Commissioner & District Magistrate Bangalore Rural District."
3. The learned counsel for the petitioner has urged before the Court that the earlier two Applications filed for resumption of the land in favour of the Legal Representatives of the Grantee were filed by the persons not authorized to do so and therefore, the Legal Representatives of the original Grantee are not estopped to challenge the sale made in favour of the non- Scheduled Caste/Scheduled Tribe category persons in violation of the conditions of Grant and in violation of the statutory provisions of Section 4 of the PTCL Act.
4. The contentions are rebutted/controverted by the opposite counsel.
Date of Order 10-10-2018 W.P.No.58219/2016 Shri. Manjunath Vs. M/s. Model Farm Houses Pvt. Ltd., & Anr. 10/17
5. The learned Deputy Commissioner in the impugned Order dated 27/09/2016 has found that the sale had taken place way back in the year 1972 in favour of Smt. Akkayyamma for the first time, much before coming into force of the Act with effect from 1st January 1979 and the land in question was alienated after 15 years of the non-alienation condition, the same was challenged by one of the Legal Representatives of the original Grantee first in the year 1991 and again in the year 2002, but both these Applications came to be decided by the Assistant Commissioner against them. The third Application filed by the petitioner in the year 2006 came to be allowed by the Assistant Commissioner on 13/07/2009 and in an Appeal filed by the purchaser, the Deputy Commissioner has allowed the Appeal of the purchaser by the impugned Order on 27/09/2016.
Date of Order 10-10-2018 W.P.No.58219/2016 Shri. Manjunath Vs. M/s. Model Farm Houses Pvt. Ltd., & Anr. 11/17
6. The controversy regarding the unreasonably long period after which the sale in favour of non-SC/ST category persons cannot be challenged has been discussed in detail by the Hon'ble Supreme Court in the case of Vivek M. Hinduja and others Vs. M. Ashwatha and others dated 06/12/2017 in Civil Appeal No.2166/2009.
The relevant portion of the said judgment dated 06/12/2017 is quoted below for ready reference:-
" 4. Arguments have been addressed before us at length on whether the present appellants had perfected their titles on the date of the coming into force of the Karnataka Act. We are not inclined to go into this question because the instant matters can be decided on an aspect settled by this Court in the case of Chhedi Lal Yadav and Ors. vs. Hari Kishore Yadav (D) Thr. Lrs. and Ors., and Nekkanti Rama Lakshmi vs. State of Karnataka and Anr. In these two decisions, Date of Order 10-10-2018 W.P.No.58219/2016 Shri. Manjunath Vs. M/s. Model Farm Houses Pvt. Ltd., & Anr.12/17
one of which arose under the Karnataka Act, this Court has held that the authorities entrusted with the power to annul proceedings purported to have been made by the original grantees, must exercise their powers to do so, whether on an application, or suo motu, within a reasonable time since no time is prescribed by law for taking such action. In the decided cases, action had been initiated after about 20 to 25 years of the coming into force of the Karnataka Act.
5. In the present cases, it is undisputed that the action had been initiated after almost 20 years from the coming into force of the Karnataka Act. In principle, we do not see any reason why the delay in the present cases should be considered to be reasonable. There is no material difference between the period of delay in the present cases and he decided cases.
6. Relying on some observations in the case of Manchegowda and Ors. vs. State of Karnataka and Ors. and Sunkara Date of Order 10-10-2018 W.P.No.58219/2016 Shri. Manjunath Vs. M/s. Model Farm Houses Pvt. Ltd., & Anr.13/17
Rajayalakshmi & Ors. vs. State of Karnataka, Shri Sunil Fernandes, learned counsel on the respondents' side submitted that the outer limit for initiating action should be 30 years.
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 4 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 vs. Hargovind Jasraj and Anr, 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 Date of Order 10-10-2018 W.P.No.58219/2016 Shri. Manjunath Vs. M/s. Model Farm Houses Pvt. Ltd., & Anr.14/17
on the oft-quoted passage in Smith Vs. East Elloe Rural District Council 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 Date of Order 10-10-2018 W.P.No.58219/2016 Shri. Manjunath Vs. M/s. Model Farm Houses Pvt. Ltd., & Anr.15/17
latent defects [Ed. Wade and Forsyth in Administrative Law, 7th Edn. 1994."
In the case of Pune Municipal Corporation vs. State of Maharashtra, this Court reproduced the following observation with regard to the declaration of orders beyond the period of limitation as invalid:
"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]
10. 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 Date of Order 10-10-2018 W.P.No.58219/2016 Shri. Manjunath Vs. M/s. Model Farm Houses Pvt. Ltd., & Anr.16/17
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.
11. 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.
12. Accordingly, the appeals are allowed."
7. In view of the aforesaid judgment and in view of the reasons assigned by the learned Deputy Commissioner, this Court does not find any error in the impugned Order passed by the learned Deputy Date of Order 10-10-2018 W.P.No.58219/2016 Shri. Manjunath Vs. M/s. Model Farm Houses Pvt. Ltd., & Anr. 17/17 Commissioner and the present writ petition filed by one of the Legal Representatives of the original Grantee has no merit and the same is liable to be dismissed. Accordingly it is dismissed.
8. In view of the aforesaid order, I.A.No.1/2018 is also disposed of as having become infructuous.
Sd/-
JUDGE BMV*