Karnataka High Court
Shankranaika vs The State Of Karnataka By Its Revenue ... on 20 November, 2018
Author: G.Narendar
Bench: G.Narendar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE G.NARENDAR
WRIT PETITION No.2710/2008 (SCST)
BETWEEN
SHANKRANAIKA,
SINCE DECEASEDD BY HIS LR'S
a) HALIBAI, WIFE,
AGED ABOUT 65 YEARS,
b) PARAMESHWARANAIKA, SON,
AGED ABOUT 50 YEARS,
c) CHANNANAIKA, SON,
AGED ABOUT 45 YEARS,
ALL ARE RESIDING AT
SRUNGARBAUGH,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT. ... PETITIONERS
(BY SRI. S.V.PRAKASH, ADV. FOR P1 (A & C))
AND:
1. THE STATE OF KARNATAKA
BY ITS REVENUE SECRETARY
TO GOVT., DEPT. OF REVENUE,
M.S.BUILDING,
BANGALORE-560001.
2
2. THE DEPUTY COMMISSIONER,
DAVANAGERE DISTRICT.
3. THE ASSISTANT COMMISSIONER
DAVANAGERE SUB-DIVISION,
DAVANAGERE.
4. REKHYA NAIKA,
SINCE DECEASED BY HIS LRS
a) GOPALANAIKA, SON,
AGED ABOUT 50 YEARS,
WORKING AS MANAGER,
SYNDICATE BANK,
NEAR KSRTC BUS STAND,
HUBLI 570020. ... RESPONDENTS
(BY SMT. SAVITHRAMMA, HCGP FOR R1 TO R3,
SRI. P.M.SIDDAMALLAPPA, ADV. FOR R4(A))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT
THE RESPONDENTS THE ORDER DT.3RD SEPTEMBER 2002,
MADE BY THE R2, IN CSE NO.PTCL:CR:1:01-02, AS PER ANN-
H AND DROP THE PROCEEDING HOLDING THE PROVISIONS
OF SECTION 4 AND 5 OF PTCL ACT, 1978 ARE NOT
APPLICABLE TO THE CASE ON HAND PARTICULARLY THE
WRIT PETITIONS ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
DATE OF RESERVING THE ORDER : 28.06.2018
DATE OF PRONOUNCEMENT OF ORDER : 20.11.2018
3
ORDER
Heard the learned counsel for the petitioners and learned counsel for the respondents.
2. The petitioners are before this Court being aggrieved by the order of respondent No.2 passed in proceedings bearing No.PTL:CR:1:01-02 whereby respondent No.2 was pleased to uphold the proceedings of respondent No.3 dated 07.02.2001 annulling the sale in favour of petitioners' father dated 06.03.1956 and directing restoration of the land in favour of respondent No.4 and thereby allowed the application filed under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 [hereinafter referred to as 'the Act' for short].
3. The application filed under Section 5 of the Act for resumption of the land was in the year 1991 and the same came to be rejected. On an appeal before the Deputy commissioner, the matter was remitted back to respondent No.2 for consideration. Yet again respondent No.2 rejected the claim of respondent No.4 which was once again carried 4 in an appeal before respondent No.2. Respondent No.2 by order dated 03.04.2000 was pleased to set aside the order and remitted back the matter to respondent No.3. On third round, respondent No.3 was pleased to allow the application. The appeal by the petitioners came to be rejected by respondent No.2 vide order dated 03.09.2002.
4. It is contended by the learned counsel for the petitioners that the application is highly belated and that the application for resumption was preferred after more than 35 years after the sale and after nearly 13 years of the Act coming into force and that respondent Nos.2 and 3 have failed to see that the petitioners have acquired title by way of adverse possession also and they have exercised their title and right over the land from the date of purchase and even from the date on which the Act came into force.
5. It is contended that the application by respondent No.4 seeking resumption of land under the provision of Section 5 of the Act is vitiated by delay and laches as it is made after 13 years after the Act came into force i.e., w.e.f. 01.01.1979 and that respondent Nos.2 and 5 3 ought to have rejected the same on the ground of delay and laches alone. Hence, the petitioners prays to allow the writ petition.
6. Respondent No.4 has not preferred any statement of objections. On the contrary, respondent No.4 would reiterate the findings rendered by respondent Nos.2 and 3. The respondent No.4 has not explained the delay either before the Original Authority or before this Court.
7. This Court in similar circumstances in WP No.30614/2015 vide order dated 4.6.2018 has been pleased to hold as follows:
"5. Learned counsel for the petitioner places reliance on the ruling of the Apex Court rendered in the case of Nekkanti Rama Lakshmi Vs. State of Karnataka and Another reported in 2018(1) Kar. L.R.5 (SC) wherein the Hon'ble Apex Court was pleased to hold as hereunder:
"8. However, the question that arises is with regard to terms of Section 5 of the Act which enables any interested person to make an application for having the transfer annulled as void under Section 4 of 6 the Act. This Section does not prescribe any period within which such an application can be made. Neither does it prescribe the period within which suo motu action may be taken. This Court in the case of Chhedi Lal Yadav & Ors. vs. Hari Kishore Yadav (D) Thr. Lrs. & Ors., 2017(6) SCALE 459 and also in the case of Ningappa vs. Dy.
Commissioner & Ors. (C.A. No.3131 of 2007, decided on 14.07.2011) reiterated a settled position in law that whether Statute provided for a period of limitation, provisions of the Statute must be invoked within a reasonable time. It is held that action whether on an application of the parties, or suo motu, must be taken within a reasonable time. That action arose under the provisions of a similar Act which provided for restoration of certain lands to farmers which were sold for arrears of rent or from which they were ejected for arrears of land from 1st January, 1939 to 31st December, 1950. This relief was granted to the farmers due to flood in the Kosi River which make agricultural operations impossible. An application for restoration was made after 24 years and was allowed. It is in that background that this Court upheld that it was unreasonable to do so. We have no hesitation in upholding that the present application for restoration of land made by respondent-Rajappa was made after an unreasonably long period and was liable to be 7 dismissed on that ground.
Accordingly, the judgments of the Karnataka High Court, namely, R.Rudrappa vs. Deputy Commissioner, 2000 (1) Karnataka Law Journal, 523, Maddurappa vs. State of Karnataka, 2006 (4) Karnataka Law Journal, 303 and G Maregouda vs. The Deputy Commissioner, Chitradurga District, Chitradurga and Ors, 2000(2) Kr. L.J.Sh. N.4B holding that there is no limitation provided by Section 5 of the Act and, therefore, an application can be made at any time, are overruled. Order accordingly."
6. By the said ruling, the Hon'ble Apex Court has settled the law, in respect of inordinate and gross delay in invoking the statutory provisions or exercising powers vested by the statute. After examining the issue and following its earlier ruling rendered in the case of Chhedi Lal Yadav & Ors. vs. Hari Kishore Yadav (D) Thr.Lrs.& Ors. reported in 2017(6) SCC 459 wherein it has been reiterated that in respect of a statute that does not provide for a period of limitation to exercise the power, then the statutory provisions must be invoked within a reasonable time.
87. Learned HCGP would also place on record the Judgment rendered by this Court in WP No.6051/2008(SC/ST) C/w.WP No.1951/2016(SC/ST) disposed of by order dated 20.2.2018 whereby, a co-ordinate Bench of this Court, placing reliance on the ruling of the Hon'ble Apex Court in Nekkanti Ram Lakshmi's case referred supra was pleased to dismiss the writ petitions preferred by the legal heirs of the original grantee.
8. In the instant case, the provisions of Section 5 are invoked after passage of more than 30 years. And by no stretch of imagination can it be considered as a reasonable period. The law in this regard has been well settled and is squarely applicable to the facts of the case.
9. The contention on behalf of the petitioner merits consideration. The counsel for respondent would submit that the decision reported in the case cited supra cannot be looked into in view of the law laid down by the Apex Court in the case of Manchegowda vs. State of Karnataka reported in (1984) 3 SCC 301. That in the 9 case of Manchegowda, the law is settled by a Division Bench of three Judges whereas, the cited ruling is rendered by a Division Bench of two Judges. This contention requires to be rejected in the light of the fact that, the Hon'ble Apex Court was not seized with the issue regarding delay in invoking the provisions of the Act while disposing of Manchegowda's case. Thus, the Apex Court has not considered the issue with regard to unreasonable delay in invoking the provisions of the statute as the said ruling came to be rendered in a short span after coming into force of the enactment.
10. The Hon'ble Apex Court in Manchegowda's case referred supra in fact visualized the present conundrum by holding that any negligence and delay on the part of the authorities, entitled to take action to avoid such transfers through appropriate legal process for resumption of such grant may be further impediments in the matter of avoiding such transfers and resumption of possession of the granted lands. The relevant paragraph is extracted hereunder for quick reference.
10"12. In pursuance of this policy, the Legislature is undoubtedly competent to pass an enactment providing that transfers of such granted lands will be void and not merely voidable for properly safeguarding and protecting the interests of the Scheduled Castes and Scheduled Tribes for whose benefit only these lands had been granted. Even in the absence of any such statutory provisions, the transfer of granted lands in contravention of the terms of the grant or in breach of any law, rule or regulation covering such grant will clearly be voidable and the resumption of such granted lands after avoiding the voidable transfers in accordance with law will be permitted. Avoidance of such voidable transfers and resumption of the granted lands through process of law is bound to take time. Any negligence and delay on the part of the authorities entitled to take action to avoid such transfers through appropriate legal process for resumption of such grant may be further impediments in the matter of avoiding such transfers and resumption of possession of the granted lands. Prolonged legal proceedings will undoubtedly be prejudicial to the interests of the members of the Scheduled Castes and Scheduled Tribes for whose 11 benefit the granted lands are intended to be resumed. As transfers of granted lands in contravention of the terms of the grant or any law, regulation or rule governing such grants can be legally avoided and possession of such lands can be recovered through process of law, it must be held that the Legislature for the purpose of avoiding delay and harassment of protracted litigation and in furthering its object of speedy restoration of these granted lands to the members of the weaker communities is perfectly competent to make suitable provision for resumption of such granted lands by stipulating in the enactment that transfers of such lands in contravention of the terms of the grant or any regulation, rule or law regulating such grant will be void and providing a suitable procedure consistent with the principles of natural justice for achieving this purpose without recourse to prolonged litigation in court in the larger interests of benefiting the members of the Scheduled Castes and Scheduled Tribes."
(underlining by this Court)
11. The Hon'ble Apex Court has been prophetic in rendering the said ruling by observing that, in statues where no 12 limitation is provided, the Authorities and the State must act consciously and if the process of invoking the provisions of statute is delayed and is initiated after a long lapse of time, the delay by itself would act as an impediment. The action on the application filed by the third respondent after more than 30 years cannot by any standards or parameters be construed as being made within a reasonable period and hence, cannot be sustained. Hence, the contention of the learned counsel for the 3rd respondent is liable to be rejected.
12. It is relevant to state the principle enunciated by the Hon'ble Apex Court that the exercise of power vested in an authority should be exercised in a reasonable manner and more importantly even a reasonable time more so, when time is not stipulated under the statute is not a principle of recent origins and the Hon'ble Apex Court way back in 1983 itself has enunciated the principle in the case of Mansaram vs. S.P.Pathak and others reported in 1984(1) SCC 125 where the issue involved was one of eviction of a tenant and the Hon'ble Apex Court has held that where the time limit for taking action for 13 eviction is not stipulated in the statute, the eviction after an unreasonable long lapse of time on the ground of initial occupation of the premises being unlawful is not sustainable. In para.12 the Hon'ble Apex Court has held thus:
"12. What is stated hereinbefore is sufficient to quash and set aside the order of the House Allotment Officer. However, there is one more aspect of the matter which we cannot overlook.
The appellant entered the premises in 1954. There have been numerous proceedings between him and the late Basantrai Sharma who let out the premises to the appellant but no one ever raised the question whether the appellant had entered the premises in contravention of clause 22(2). Till Basantrai Sharma died, no one raised the controversy about the entry of the appellant in the premises as being unauthorised or in contravention of clause 22. Basantrai Sharma in his life time tried to obtain possession of the premises from the appellant alleging grounds available to him under the Rent Control Order other than unauthorized entry. This would permit an inference that Basantrai Sharma accepted the appellant as his tenant and his tenancy did not suffer from any infirmity. After 14 Basantrai Sharma died, his successor-in-interest one Smt. Usha Rani N. Sharma did not raise any controversy about the occupation of the premises by the appellant. One Mr. S.P. Pathak, a total stranger has come forward to complain about the unauthorised entry of the appellant in the premises. The unauthorised entry according to the appellant was in the year 1954. Appellant retired in 1967. Basantrai Sharma was alive in 1967. If appellant came into the premises because he was holding an office of profit, obviously Basantrai Sharma would not miss the opportunity to evict the appellant because he was otherwise also trying to do the same thing. Rent was accepted without question from the appellant by Basantrai Sharma till his death and thereafter. Could he be at this distance of time, thrown out on the ground that his initial entry was unauthorized. To slightly differently formulate the proposition, could the initial unauthorized entry, if there be any, permit a House Allotment Officer, 22 years after the entry, to evict the appellant on the short ground that he entered the premises in contravention of clause 22(2) ? Undoubtedly, power is conferred on the Collector to see that the provisions of the Rent Control Order which 15 disclosed a public policy are effectively implemented and if the Collector therefore, comes across information that there is a contravention, he is clothed with adequate power to set right the contravention by ejecting anyone who comes into the premises in contravention of the provisions. But when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time. Undoubtedly, no limitation is prescribed in this behalf but one would stand aghast that a landlord to some extent in pari delicto could turn the tables against the person who was in possession for 22 years as a tenant. In such a situation, even though the House Allotment Officer was to reach an affirmative conclusion that the initial entry 22 years back was an unauthorised entry and that failure to vacate premises till 9 years after retirement was not proper, yet it was not obligatory upon him to pass a peremptory order of eviction in the manner in which he has done. In such a situation, it would be open to him not to evict the appellant. In this connection, we may refer to Murlidhar Agarwal v. State of U.P. wherein one Ram Agyan Singh who came into possession of 16 premises without an order of allotment in his favour as required by sec. 7(2) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, was permitted to retain the premises by treating his occupation lawful and this court declined to interfere with that order. No doubt it must be confessed that sec. 7A conferred power on the District Magistrate to take action against unauthorised occupation in contravention of the provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, but there was a proviso to the section which enabled the District Magistrate not to evict a person found to be in unauthorized occupation, if the District Magistrate was satisfied that there has been undue delay or otherwise it is inexpedient to do so. There is no such proviso to clause 28 which confers power on the Collector to take necessary action for the purpose of securing compliance with the Rent Control Order. But as stated earlier, where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercise of power inheres its exercise within a reasonable time. This is too well established to need buttressing by a precedent. However, one is readily available in State of Gujarat v. Patel Raghav Natha & Ors. In that case Commissioner 17 exercised suo motu revisional jurisdiction under sec. 211 of the Bombay Land Revenue Code which did not prescribe any period of limitation for exercise of revisional jurisdiction. The Commissioner exercised revisional jurisdiction one year after the Collector made the order which was sought to be revised. The High Court set aside the order of the Commissioner. In the appeal by State of Gujarat, this Court declined to interfere holding inter alia that the revisional power in the absence of prescribed period of limitation must be exercised within a reasonable time and period of one year was held to be too late. This aspect must be present to the mind of House Allotment Officer before just rushing in on an unproved technical contravention brought to his notice contrived by the successor-in-interest of the deceased landlord, and evicting the appellant 22 years after his entry and 9 years after his retirement on the short ground that his entry in the year 1954 was in contravention of clause 22(2)."
13. The above decision has been reiterated by the Hon'ble Apex Court in its subsequent judgment in the case of Santhoshkumar Shivgonda Patil & others vs. Balasaheb Tukaram Shevale 18 and others reported in (2009) 9 SCC 352 wherein at para.10 referring to the ruling in the case of State of Punjab vs. Bhatinda District Co-op Milk Producers Union Ltd., held that where the statute does not prescribe the time limit, same has to be exercised within a reasonable time be it suo motu or otherwise. It was pleased to hold that the reasonable period under the Maharashtra Land Revenue Code could be three years subject to exceptional circumstances and categorically held that the exercise of revisional power after lapse of 17 years can by no stretch of imagination be construed as being within a reasonable time. The observation of the Hon'ble Apex Court in para.10,11 and 12 is reproduced below.
'10. Recently, in the case of State of Punjab and Others v.
Bhatinda District Coop. Milk Producers Union Ltd. while dealing with the power of revision under Section 21 of the Punjab General Sales Tax Act, 1948, it has been held: (SCC p.367, paras 17-19) "17. A bare reading of Section 21 of the Act would reveal that although no period of limitation has been prescribed therefore, the same would not mean that the suo motu power can be exercised at any time.
1918. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors.
19. Revisional jurisdiction, in our opinion, should ordinarily be exercised within a period of three years having regard to the purport in terms of the said Act. In any event, the same should not exceed the period of five years. The view of the High Court, thus, cannot be said to be unreasonable. Reasonable period, keeping in view the discussions made hereinbefore, must be found out from the statutory scheme. As indicated hereinbefore, maximum period of limitation provided for in sub-section (6) of Section 11 of the Act is five years."
11. It seems to be fairly settled that if a statute does not prescribed the time-limit for exercise of revisional power, it does not mean that such power can be exercises at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is playing that exercise of such power 20 within reasonable time is inherent therein.
12. Ordinarily, the reasonable period within which the power of revision may be exercised would be 3 years under Section 257 of the Maharashtra Land Revenue Code subject, of course, to the exceptional circumstances in a given case, but surely exercise of revisional power after a lapse of 17 years is not a reasonable time. Invocation of revisional power by the Sub-Divisional Officer under Section 257 of the Maharashtra Land Revenue Code is plainly an abuse of process in the facts and circumstance of the case assuming that the order of the Tahsildar passed on 30.03.1976 is flawd and legally not correct.'
14. Thus, without exception and across various fields of law, the Apex Court has categorically stated the law in respect of exercise of powers/jurisdiction under a statute where no limitation is stipulated. Hence, law in this regard is no more res integra. Apart from the embargo placed by the Apex Court in exercise of jurisdiction by the authorities under the statute where no limitation is specified, the Apex Court has also settled the law in respect of delay on the part of litigants in seeking redressal of the grievances.
2115. Law on the point of delay and laches is well settled by a catena of Judgments be it, in the matter of land acquisition or in the field of service law. The Apex Court has been pleased to hold that unexplained gross delay would be fatal to the right of the party, to seek a judicial adjudication of his rights."
8. The law settled by the Apex Court squarely applies to the facts of the instant case also. The grant was of the year 1942 and the first sale deed was executed on 06.03.1956. In effect third party rights came to be created and the parties were also in settled positions. There is no dispute with regard to the dates.
9. In this context, gainful reference could be made to the catena of decisions and the recent decisions in this regard are:
1) (1996) 6 SCC 445 in the case of STATE OF RAJASTHAN & OTHERS vs. D.R.LAKSHMI & OTHERS wherein the Hon'ble Apex Court has cautioned the High Courts not to entertain the writ petitions where there is inordinate delay while exercising jurisdiction under Article 226 of the Constitution of India.22
2) Similarly in the case of THE MUNICIPAL COUNCIL, AHMEDNAGAR & ANR. Vs. SHAH HYDER BEIG AND ORS. (2002) 2 SCC 48 wherein it has been opined that the real test for sound exercise of discretion by the High Court in this regard is not the physical running of time such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the writ Court, the rights of the third parties have come into being which should not be allowed to disturb unless there is reasonable explanation for the delay.
10. On the ground of gross delay and laches also, the application by the respondent grantee under Section 5(2) of the Act requires to be rejected and consequently, the writ petition requires to be allowed.
11. It is not in dispute that the PTCL Act came into force with effect from 1.1.1979. Assuming that either the grantee or his legal representatives were keen on establishing the right vested in them under the provisions of Sec.5, they were required to act in a diligent manner. In the instant case, diligence is woefully lacking. The party wakes up and gears into action after 35 years and 13 years 23 of the Act coming into force and there is absolutely no ground urged which is worthy of being called as explanation for the gross and inordinate delay. Hence, even on this ground, the writ petition is liable to be allowed.
12. In view of the above discussion, this Court finds merit in the present writ petition. Accordingly, the writ petition is allowed. Annexures-G and H the orders passed by 2nd and 3rd respondents, are quashed.
In the light of the law and facts involved in the litigation, there shall be no order as to costs.
Rule made absolute.
Sd/-
JUDGE VM C T: H R