Karnataka High Court
Mr Umar Khatri vs Mr Bettaiah on 13 September, 2022
Author: Alok Aradhe
Bench: Alok Aradhe
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR. ALOK ARADHE
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
W.A.No.88/2020(SC-ST)
BETWEEN:
MR. UMAR KHATRI
S/O YUNUS KHATRI
AGED ABOUT 57 YEARS
RESIDING AT NO.115
MARGOSA ROAD
MALLESHWARAM
BENGALURU - 560 003. ...APPELLANT
(BY SRI UDAYA HOLLA, SR. COUNSEL FOR
SRI RAMESH P. KULKARNI, ADV.)
AND:
1. MR. BETTAIAH
S/O LATE BETTEGOWDA
AGED ABOUT 69 YEARS
RESIDING AT 29 & 30
7TH A CROSS, 23RD A MAIN
JP NAGAR II PHASE
BENGALURU - 560 078.
2. THE DEPUTY COMMISSIONER
BENGALURU DISTRICT
BENGALURU - 560 001.
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3. THE ASSISTANT COMMISSIONER
BENGALURU NORTH SUB-DIVISION
BENGALURU - 560 001.
4. MR. KUNNAPPA
S/O LATE K. MUNIYAPPA
AGED MAJOR
RESIDING AT SURADENUPURA
VILLAGE, HESARAGHATTA HOBLI
BANGALORE NORTH (ADDL) TALUK
BENGALURU - 560 091.
5. MRS. MANJAMMA
W/O KUNNAPPA
AGED MAJOR
R/AT SURADENUPURA VILLAGE
HESARAGHATTA HOBLI
BANGALORE NORTH (ADDL) TALUK
BENGALURU - 560 091.
6. MRS. MARAKKA
W/O POOJAPPA
AGED MAJOR
R/AT SURADENUPURA VILLAGE
HESARAGHATTA HOBLI
BANGALORE NORTH (ADDL) TALUK
BENGALURU - 560 091. ...RESPONDENTS
(BY SRI V. LAKSHMINARAYANA, SR. COUNSEL FOR
SRI B. RAVINDRANATH, ADV., FOR R-1 & R-4;
SRI S.S. MAHENDRA, AGA FOR R-2 & R-3;
V/O DATED 16.11.2021 NOTICE TO R-4 & R-5 &
V/O DATED 07.12.2021 NOTICE TO R-6 IS HELD SUFFICIENT)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE
ORDER DATED 06.12.2019 PASSED BY THE LEARNED SINGLE
JUDGE IN W.P.NO. 46623/2013 (SC-ST) AND ETC.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS
DAY, VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:
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JUDGMENT
This intra court appeal has been filed challenging the order dated 06.12.2019 passed by the learned Single Judge of this Court in W.P.No.46623/2013.
2. Heard the learned Senior Counsel appearing for the parties and also perused the material on record.
3. Brief facts of the case that would be necessary for the purpose of disposal of this appeal are, land bearing Sy. No.31 (new No.59) of Sriramanahalli village, Hesaraghatta Hobli, Bengaluru North (Addl.) Taluk, measuring 2 acres was granted to one Sri Muniyappa on 19.08.1949. The original grantee - Muniyappa had sold the said property in favour of one Revanasiddappa under a registered sale deed dated 08.05.1974. The said Revanasiddappa had sold the land in question in favour of one Narasimha Reddy on 10.09.1980, who intrun had sold the land in question in favour of one K.A.Nataraj and K.A.Ravi Kumar under a registered sale deed dated 18.08.1983. K.A.Nataraj and K.A.Ravi Kumar, thereafter, had sold the land in question to one Palagondappa Halappa under a registered sale deed dated 06.05.1987. 4 Palagondappa Halappa had sold the said property in favour of one Bylappa on 01.01.1993 and the appellant herein had purchased the land in question from the sons of the aforesaid Bylappa under a registered sale deed dated 18.08.2005.
4. The legal heirs of the original grantee - Muniyappa had filed an application in the year 2005 under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, 'PTCL Act') seeking resumption of the land before the Assistant Commissioner. The appellant was not made a party to the said proceedings. The Assistant Commissioner by order dated 31.05.2008 had ordered resumption of the land in question in favour of the legal heirs of the original grantee. The said order dated 31.05.2008 was challenged by the appellant herein before the Deputy Commissioner under Section 5-A of the PTCL Act and during the pendency of the said appeal, the legal heirs of the original grantee obtained permission from the State Government to sell the land in question, and thereafter, on 03.08.2011, respondent no.1 5 herein had purchased the land in question from the legal heirs of the original grantee.
5. Subsequently, the Deputy Commissioner allowed the appeal filed by the appellant on 06.08.2013 and set aside the order passed by the Assistant Commissioner dated 31.05.2008. Challenging the said order dated 06.08.2013 passed by the Deputy Commissioner, respondent no.1 herein had filed W.P.No.46623/2013, while the legal heirs of the original grantee had filed W.P.No.39674/2013, which was subsequently dismissed as withdrawn on 10.03.2014. The learned Single Judge, thereafter by the order impugned has allowed W.P.No.46623/2013 filed by respondent no.1 herein and the matter is remitted back to the Assistant Commissioner for fresh enquiry. Being aggrieved by the said order, respondent no.3 in W.P.No.46623/2013 has preferred this appeal.
6. Learned Senior Counsel appearing for the appellant submits that the PTCL Act had come into force with effect from 01.01.1979 and the application under Section 5 of the PTCL Act has been undisputedly filed in the year 2005 i.e., 6 after an inordinate delay of 26 years. He submits that respondent no.1 who is a purchaser pendente lite is not entitled for any hearing in the matter. He also submits that the legal heirs of the original grantee have withdrawn W.P.No.39674/2013 filed by them challenging the order passed by the Deputy Commissioner, and therefore, the learned Single Judge could not have placed reliance on the judgment of this Court in the case of SMT. P.KAMALA VS THE STATE OF KARNATAKA & OTHERS1. In support of his arguments, learned Senior Counsel for the appellant has placed reliance on the judgments in the case of NEKKANTI RAMA LAKSHMI VS STATE OF KARNATAKA & ANOTHER2, VIVEK M.HINDUJA VS M.ASWATHA3, NINGAPPA VS DEPUTY COMMISSIONER & OTHERS4, and DHARMAPAL SATYAPAL LIMITED VS DEPUTY COMMISSIONER OF CENTRAL EXCISE, GAUHATI & OTHERS5.
7. Per contra, learned Senior Counsel appearing for respondent no.1 submits that the sale deeds executed prior 1 ILR 2019 KAR 3301 2 (2020)14 SCC 232 3 (2019)1 Kant LJ 819 SC 4 (2020)14 SCC 236 5 (2015)8 SCC 519 7 to the State granting permission to sell the granted land are all void transactions, and therefore, the purchasers thereunder including the appellant do not derive any valid title under their respective sale deeds. He submits that respondent no.1 has purchased the property pursuant to the permission granted under Section 4(2) of the PTCL Act, and therefore, he has derived a valid title over the land in question. He submits that the Deputy Commissioner had passed an order without hearing respondent no.1, and therefore, the learned Single Judge has rightly remitted the matter. He also submits that the first sale deed has been executed within the non-alienation period, and therefore, the said document is a void document and all the sale deeds executed thereafter are also void documents. He submits that the law of limitation is not applicable to quasi-judicial authorities, and therefore, there is no merit in the contention urged by the appellant's counsel that the application under Section 5 of the PTCL Act could not have been entertained after an inordinate delay of 26 years. He further submits that in the absence of any challenge to the order dated 09.03.2011 passed by the State Government under Section 8 4(2) of the PTCL Act permitting sale of the land in question, there cannot be any challenge to 1st respondent's title in respect of the land in question, and therefore, the appeal does not merit consideration. He further submits that if the rules of principles of natural justice are not followed by the original authority, the same cannot be cured by the appellate authority, and therefore, the learned Single Judge was justified in remanding the matter. In support of his contentions, he has relied upon the following decisions:
i) 63 MOONS TECHNOLOGIES LIMITED (FORMERLY KNOWN AS FINANCIAL TECHNOLOGIES INDIA LIMITED) & OTHERS VS UNION OF INDIA & OTHERS6.
ii) SAKRU VS TANAJI7.
iii) PAPAIAH VS STATE OF KARNATAKA8.
iv) STATE OF RAJASTHAN VS UCCHAB LAL CHHANWAL9.
8. The undisputed facts of the case are that the land in question was granted to one Muniyappa on 19.08.1949, who 6 (2019)18 SCC 401 7 (1985)3 SCC 590 8 (1996)10 SCC 533 9 (2014)1 SCC 1440 9 had executed a registered sale deed in respect of the granted land in favour of one Revanasiddappa on 08.05.1974.
Thereafter, several transactions have taken place in respect of the land in question and the appellant herein had purchased the land in question under a registered sale deed dated 18.08.2005. The application seeking resumption under Section 5 of the PTCL Act was filed by the legal heirs of the original grantee in the year 2005 before the Assistant Commissioner. The PTCL Act has come into force with effect from 01.01.1979. Therefore, the application for resumption has been undisputedly filed by the legal heirs of the original grantee after a lapse of 26 years from the date the PTCL Act came into force.
9. The Assistant Commissioner had allowed the application filed by the legal heirs of the original grantee and the said order was challenged by the appellant herein before the Deputy Commissioner under Section 5-A of the PTCL Act. During the pendency of the appeal on the application of the legal heirs of the original grantee, the State Government had granted permission for sale of the land in question and 10 respondent no.1 herein had thereafter purchased the land in question under a registered sale deed dated 03.08.2011. The Deputy Commissioner has allowed the appeal filed by the appellant on 06.08.2013. Therefore, it is clear that respondent no.1 had purchased the land in question pendente lite from the legal heirs of the original grantee.
10. The legal heirs of the original grantee had filed W.P.No.39764/2013 challenging the order dated 06.08.2013 passed by the Deputy Commissioner, and subsequently, they have withdrawn the said writ petition. Therefore, undisputedly, there is no challenge to the order passed by the Deputy Commissioner by the legal heirs of the original grantee from whom respondent no.1 herein had purchased the land in question during the pendency of the appeal filed by the appellant herein before the Deputy Commissioner. It is trite law that a purchaser pendente lite is bound by the orders passed in the proceedings which was pending consideration as on the date of transaction under which he/she sets up a claim. Under these circumstances, in our considered view, the learned Single Judge was not justified in 11 placing reliance on the judgment of the Division Bench of this Court in P.Kamala's case supra and remanding the matter to the authorities to consider the matter afresh. In P.Kamala's case, the matter was remanded to provide an opportunity to the legal representatives of the original grantee to explain the delay caused in filing the application under Section 5 of the PTCL Act. In present case, the legal heirs have withdrawn their claim in respect of the land in question, and therefore, the learned Single Judge was not justified in placing reliance on the judgment in P.Kamala's case supra for the purpose of remanding the matter.
11. The Hon'ble Supreme Court in Neekanti Rama Lakshmi's case and Vivek M.Hinduja's case supra, has clearly held that any action either on the application of the grantee or the legal representatives of the grantee or suo motu for restoration of the lands in favour of the grantee or his legal representatives is required to be made within a reasonable period. In Ningappa's case supra, the Hon'ble Apex Court had declined to entertain the application for restoration which was submitted after a period of nine years.
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12. Undisputedly, the application under Section 5 of the PTCL Act has been filed in the present case after an inordinate delay of 26 years, and therefore, it is very clear that the legal heirs of the original grantee had failed to initiate action under the provisions of the PTCL Act within a reasonable period from the date PTCL Act came into force. Under the circumstances, we are of the view that the learned Single Judge was not justified in placing reliance on the judgment in SATYAN VS DEPUTY COMMISSIONER & 10 OTHERS case supra, wherein the delay in filing the application was eight years.
13. In Ningappa's case supra, the Hon'ble Apex Court has held that delay of nine years in filing the application under Section 5 of the PTCL Act as beyond reasonable period, and therefore, in our view, definitely the period of 26 years is required to be considered as an inordinate delay in filing the application and the same is beyond the reasonable period.
14. Section 5 of the PTCL Act provides for resumption and restitution of the granted land either on the application of 10 AIR 2019 SC 2797 13 any interested person or on information given in writing by any person or suo-motu and the Assistant Commissioner is empowered under this provision to resume/restore the granted land in favour of the grantee/legal heirs of the grantee in the event he is satisfied after enquiry that the transfer of granted land is in violation of Section 4 of the PTCL Act. Under this provision, he is also empowered to take possession of such land after evicting all persons in possession thereof and in the event he is not in a position to restore the land to the grantee, such land shall be deemed to have vested in the Government free from all encumbrances and the Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the Rules relating to grant of land. Therefore, even if the transfer of granted land is null and void, the same can be restored or resumed to the grantee or his legal representatives only pursuant to an order passed under Section 5 of the PTCL Act.
15. In Papaiah's case supra, it has been held that transfer of granted land during the prohibited period would be 14 null and void. We are in respectful agreement with the view taken by the Hon'ble Supreme Court in Papaiah's case supra.
16. However, for resumption and restitution of the granted land which have been transferred in violation of Section 4 of the PTCL Act, action is required to be taken within a reasonable period and the law in this regard has been laid down by the Hon'ble Supreme Court in Neekanti Rama Lakshmi's case and Vivek M.Hinduja's case supra. This Court has been consistently following the said judgments and wherever there is a delay of more than nine years in filing the application under Section 5 of the PTCL Act, this Court has held that the action taken is beyond a reasonable period. No exception can be made in this case that too when the delay in filing the application under Section 5 of the PTCL Act is more than 26 years.
17. Respondent no.1 herein has purchased the land in question during the pendency of the appeal filed by the appellant herein under Section 5-A of the PTCL Act before the Deputy Commissioner. The legal heirs of the original grantee who were the respondents in the said appeal have accepted 15 the order passed by the Deputy Commissioner by withdrawing the writ petition which was filed by them challenging the order of the Deputy Commissioner. It is trite law that a purchaser pendente lite would be bound by the orders passed in the proceedings that was pending at the time of purchase of the land in question which was the subject matter of the pending proceedings.
18. The purchaser pendente lite cannot be said to be a just and necessary party to the proceedings which were pending at the time of he/she purchasing the land in question. Therefore, the contention of respondent no.1 that if a party who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice, is liable to be rejected, and therefore, we are of the view that the judgment of the Hon'ble Supreme Court in Ucchab Lal Chhanwal's case and 63 Moons Technologies Limited's case supra cannot be made applicable to the facts and circumstances of the present case. 16
19. The power under Section 5 of the PTCL Act conferred upon the Assistant Commissioner is to determine whether the transfer of any granted land is null and void for violation of Section 4 of the PTCL Act after such enquiry as he deems necessary. Proceedings was initiated under Section 5 of the PTCL Act pursuant to an application filed by the legal heirs of the original grantee in the year 2005 and placing reliance on the judgments of the Hon'ble Supreme Court in Neekanti Rama Lakshmi's case, Vivek M.Hinduja's case and Ningappa's case supra, we have already held that the application under Section 5 of the PTCL Act was filed by the legal heirs of the original grantee beyond the reasonable period, and therefore, the Assistant Commissioner could not have entertained the said application. Further, the Deputy Commissioner's order setting aside the order passed by the Assistant Commissioner passed in exercise of the power under Section 5 of the PTCL Act has attained finality in so far as the legal heirs of the original grantee are concerned having regard to the fact that they have withdrawn W.P.No.39674/2013 filed by them challenging the order passed by the Deputy Commissioner under Section 5-A of the 17 PTCL Act. Therefore, in our considered view, it was wholly unnecessary for the learned Single Judge to remand the matter to the Assistant Commissioner.
19. The learned Single Judge has failed to appreciate the scope of enquiry under Section 5 of the PTCL Act and he has also erred in holding that the matter has to be remitted to the Assistant Commissioner to provide an opportunity to the legal heirs of the original grantee in view of the judgment in P.Kamala's case supra. Under the circumstances, the order impugned passed by the learned Single Judge cannot be sustained. Accordingly, the following order.
20. The writ appeal is allowed. The order dated 06.12.2019 passed by the learned Single Judge in W.P.No.46623/2013 is set aside.
Sd/-
ACTING CHIEF JUSTICE Sd/-
JUDGE KK