Karnataka High Court
Sri Abdul Mushiveer vs The Deputy Commissioner on 30 December, 2020
Author: M.Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.7812/2012 (SC - ST)
BETWEEN
1. SRI ABDUL MUSHIVEER
THE SECRETARY, MOSQUE,
AGED ABOUT 62 YEARS,
DOOR NO. 901.
2. SRI NARAYANAPPA
S/O NARASIMHAIAH,
AGED ABOUT 75 YEARS,
DOOR NO. 903.
3. SRI V.HANUMANTHAIAH
S/O VENKAAPPA,
AGED ABOUT 70 YEARS,
DOOR NO. 909.
4. SRI PALAKHA
S/O VENKATAPPA,
AGED ABOUT 52 YEARS,
DOOR NO. 910.
5. SRI KUMARASWAMY
S/O MASTEGOWDA,
AGED ABOUT 37 YEARS,
DOOR NO. 913.
2
6. SRI C.B.MAHESWARAN
S/O BALAKRISHNAN,
AGED ABOUT 35 YEARS,
DOOR NO. 912.
7. SRI ANANDA
S/O C.K.CHANDRU,
AGED ABOUT 35 YEARS,
DOOR NO. 911.
8. SRI CHENNAMMA
W/O LATE RAMU,
AGED ABOUT 64 YEARS,
DOOR NO. 914.
9. SRI DHRAMARAJU
S/O KEMPEGOWDA,
AGED ABOUT 48 YEARS,
DOOR NO. 915.
10. SMT. PUTTARAJAMMA
W/O NINGEGOWDA,
AGED ABOUT 48 YEARS,
DOOR NO. 922.
11. SRI K.MOHANA
S/O KENGANNA,
AGED ABOUT 55 YEARS,
DOOR NO. 917.
12. SMT. MAHADEVAMMA
S/O SRINIVASA,
AGED ABOUT 55 YEARS,
DOOR NO. 916.
13. SMT. GAYETHRI
W/O YOGANNA,
AGED ABOUT 45 YEARS,
DOOR NO. 863.
3
14. SRI A.ELANGO RAJAN
S/O ANADARAJAN,
AGED ABOUT 42 YEARS,
DOOR NO. 865.
15. SRI YESUDAS
S/O LATE SELVARAJU,
AGED ABOUT 36 YEARS,
DOOR NO. 871.
16. SRI JOGENDRA SHA
S/O FEKUSHA,
AGED ABOUT 52 YEARS,
DOOR NO. 866.
17. SRI S.JAMES
S/O SHANTHARAJU,
AGED ABOUT 30 YEARS,
DOOR NO. 903.
18. SRI JAISHILA RAOYAN
S/O YESUDAS,
AGED ABOUT 40 YEARS,
DOOR NO. 840.
19. SMT. SANTHAMMA
W/O LATE C.P.THAMBI,
AGED ABOUT 55 YEARS,
DOOR NO.842.
20. SRI K.J.CHINNAPPA
S/O LATE K.JOSEPH,
AGED ABOUT 63 YEARS,
DOOR NO. 843.
4
21. SRI ANILKUMAR
S/O K.J.CHENNAPPA,
AGED ABOUT 34 YEARS,
DOOR NO. 845.
22. SMT.SAVITHRAMMA
S/O LATE SRINIVAS,
AGED ABOUT 52 YEARS,
DOOR NO. 867.
23. SRI VASANTHA
S/O YOGANNA,
AGED ABOUT 26 YEARS,
DOOR NO. 864.
24. SMT. LALASAKUMARI
S/O AMIKABYTA,
AGED ABOUT 26 YEARS,
DOOR NO. 846.
25. SMT. MERCIN PERIRA
S/O LATE ARULNADAN,
AGED ABOUT 60 YEARS,
DOOR NO. 848.
26. SMT. ELIZABETH A.,
W/O ANTHONYWINCENT,
AGED ABOUT 37 YEARS
DOOR NO. 849.
27. SMT. NITHYA G.R.,
S/O RAJU V.,
AGED ABOUT 32 YEARS,
DOOR NO. 851.
28. SRI M.P.TELSON
S/O LATE KUNJAPPAN,
AGED ABOUT 42 YEARS,
DOOR NO. 853.
5
29. SRI A.DANIAL
S/O LATE C.ANTHONI,
AGED ABOUT 56 YEARS,
DOOR NO. 854.
30. SMT. LATHARAJU S.,
W/O K.RAJU,
AGED ABOUT 36 YEARS,
DOOR NO.855.
31. SRI JAMES
S/O DAVID,
AGED ABOUT 40 YEARS,
DOOR NO. 852.
32. SMT. HEMAVATHI
W/O LATE KRIHSNANAIDU,
AGED ABOUT 52 YEARS,
DOOR NO. 861.
33. SRI S.MAHADEVA
S/O SIDDACHAR,
AGED ABOUT 48 YEARS,
DOOR NO. 860.
34. SRI S.VENKATESH
AGED ABOUT
DOOR NO.
35. SRI R.GNANA PRAKASH
S/O RANTHAPPA,
AGED ABOUT 41 YEARS,
DOOR NO. 844.
36. V.HANUMANTHAIAH
AGED ABOUT
DOOR NO.
6
37. SRI CHIKKASIDDAIAH
AGED ABOUT
DOOR NO.
38. SRI K JOSEPHA
S/O LATE KANTHARAJU
AGED ABOUT 45 YEARS
DOOR NO. 857.
ALL ARE RESIDING AT
BELVATHA VILLAGE, KASABA HOBLI,
RBI POST, MYSURU TALUK - 570 003
MYSURU DISTRICT.
... PETITIONERS
(BY SRI A.LOURDU MARIYAPPA, ADVOCATE (PHYSICAL HEARING))
AND
1. THE DEPUTY COMMISSIONER
MYSURU - 570 001,
MYSURU DISTRICT.
2. THE ASSISTANT COMMISSIONER
MYSURU DIVISION,
MYSURU - 570 001
MYSURU DISTRICT.
3. THE THASILDAR
MYSURU TALUK,
MYSURU - 570 001
MYSURU DISTRICT.
4. SMT. VENKATAMMA
W/O KUPPIAH,
BELVATHA VILLAGE,
KASABA HOBLI,
MYSURU TALUK - 570 003.
7
THE RES. NO.-4 EXPIRED AND
HER L.Rs ARE RES.NO.5 & 6, WHO
ARE ALREADY ON RECORD
VIDE ORDER DATED 31.10.2018.
5. SMT.KANNAMMA
D/O LATE KUPPAIAH,
W/O VENKATARAMU,
AGED ABOUT 55 YEARS.
6. NAGARAJU
S/O VENKATARAMU,
AGED ABOUT 35 YEARS,
BOTH ARE R/AT.
BELVATHA VILLAGE,
MYSURU TALUK - 570 003
MYSURU DISTRICT.
... RESPONDENTS
(BY SMT.SAVITHRAMMA, HCGP FOR R1 - R3 (PHYSICAL HEARING);
SRI G.H.SRINIVAS, ADVOCATE FOR R5 AND R6 (VIDEO
CONFERENCING);
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER PASSED BY THE R3 IN MEMORANDUM DT 6.9.11 AT ANNX-A
IN RESPECT OF THE SCHEDULE LAND BEARING SY NO.93/17
MEASURING TWO ACRE FIVE GUNTAS OF LAND SITUATED AT
SITUATED IN BELAVATHA VILLAGE, KASABA HOBLI, MYSURU
TALUK & DIST.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 09.10.2020 COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING :-
8
ORDER
The petitioners in this writ petition have called in question the memorandum No.PTCL/77/11-12 dated 06.09.2011, of the third respondent - Tahsildhar, Mysuru Taluk, in respect of land bearing survey No.93/17 measuring 2 acres 5 guntas in a proceedings instituted under provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as 'the said Act' for short).
2. Parties will be referred as the purchasers (petitioners) and the legal heirs of the original grantee (respondent Nos.5 and 6) for the sake of convenience.
3. Brief facts of the case leading to the filing of the present writ petition are that, land in survey No.93/17 situated at Belavathha Village, Kasaba Hobli, Mysuru Taluk, was granted to one Mahadevaiah on 21.01.1942, with a condition of non-alienation. In violation of the conditions, Mahadevaiah 9
- the original grantee sold the land on 03.10.1951, to one Smt. Kannamma. The said Act came into force on 01.01.1979. On the said Act coming into force, the legal heirs of the Mahadevaiah, appeared to have instituted proceedings before the Assistant Commissioner in the year 1989. The Assistant Commissioner is said to have allowed the claim of the legal heirs of the original grantee by his order dated 21.09.1990.
4. After the order of the Assistant Commissioner dated 21.09.1990, nothing happens. For the first time, in the year 2008. Certain proceedings are taken up by the third respondent - Tahsildhar seeking to implement the order of the Assistant Commissioner dated 21.09.1990, after 21 years of its passage i.e., 06.09.2011, directing that the land should be restored to the government and later on, it shall be handed over to the legal heir of the original grantee. It is this memorandum that is called in question by the petitioners in this writ petition.
105. Heard Sri A. Lourdu Mariyappa, learned counsel for petitioners, Smt. Savithramma, learned High Court Government Pleader for the State, Sri G.H.Srinivas, learned counsel for fifth and sixth respondents.
6. Learned counsel for the petitioners would submit that the petitioners have been in possession of the property since they purchased the same from the purchaser of the original grantee. There are no proceedings instituted by the Assistant Commissioner seeking resumption of the land. It is for the first time, the second respondent seeking to implement the order dated 21.09.1990, instituted proceedings and passed an order on 29.12.2012, directing resumption of land.
7. On the other hand, learned counsel for fifth and sixth respondents - legal heirs of the original grantee would submit that the land admittedly sold in violation of the conditions of the grant as the land granted was permanently non-alienable, merely because the proceedings for resumption is not 11 instituted, will not give a right to the petitioners to hold on to the land.
8. Learned High Court Government Pleader would also submit that various correspondences post the order passed by the Assistant Commissioner would clearly indicate that the order was passed by the Assistant Commissioner in the year 1990, directing resumption of land. The purchasers who are in possession of the land having not challenged the same cannot derive any right from the fact that they were in possession of the land illegally.
9. I have given my anxious consideration to the submission made by the learned counsel for the parties and perused the material on record.
10. The land in survey No.93/17 situated at Belavathha Village, Kasaba Hobli, Mysuru Taluk, was granted to one Mahadevaiah on 21.01.1942, is not dispute and the granted land was sold on 03.10.1951, is also a fact which is not in 12 dispute. The dispute is with regard to the proceedings instituted by the legal heirs of the original grantee in the year 1989-90. The chain of events that have taken place after the alleged passage of the order of the Assistant Commissioner creates certain amount of suspicion.
11. The links in the chain of events are as follows, the Assistant Commissioner, Mysuru, is said to have instituted proceedings in case No.PTCL /P.R./23/89-90 and passed an order on 21.09.1990, the alleged resumption order. Even after 18 years after the passage of the order of the Assistant Commissioner, there was no correspondence or proceedings instituted by any authority. On 17.06.2008 - Annexure 'D' a letter is written by the Tahsildhar to the Assistant Commissioner stating that there are no records or orders received by the Assistant Commissioner in response to Annexure 'B', a communication sent by the Assistant Commissioner the Tahsidhar, Mysuru, to secure the records.
The Assistant Commissioner registers a complaint with the 13 Superintendent of Police on 28.06.2008 and the police in reply, state that they have received a copy of the order from Smt. Kannamma, passed by the Assistant Commissioner on 27.11.2008, directing the Tahsildhar to make an enquiry and to verify if the order passed in the year 1990 is genuine.
12. At this stage, as it became necessary for this Court to examine the original records, the records pertaining to the case were summoned. On perusal of the original records of the proceedings before the Assistant Commissioner, what is seen is only the registration of certain proceedings concerning to survey No.27/1, there is no order alleged to have passed by the Assistant Commissioner on 21.09.1990, even in the original record. Therefore, it cannot be said that there were any proceedings instituted before the Assistant Commissioner in the year 1990, by the legal heirs of the original grantee.
13. For the first time, the Assistant Commissioner institutes proceedings under Section 5 of the said Act in the 14 year 2011, and passes an order on 29.12.2012, directing the Tahsildhar to take proceedings in terms of the order of the Assistant Commissioner dated 21.09.1990, in proceedings No.PTCL 23/1989-90. The petitioners who are in possession of the property are not made parties to these proceedings.
The Assistant Commissioner has directed the Tahsildhar to take steps to implement a non-existing order, an order which is not even found in the records in the office of the Assistant Commissioner concerning the subject land. Therefore, it can be construed that the legal heirs of the original grantee for the first time instituted proceedings before the Assistant Commissioner in the year 2011, for a sale that took place in the year 1951, after 32 years of the said Act coming into force. Though there are no proceedings instituted earlier, but in the original records what is found is, the proceedings instituted in the year 2011, which cannot be a proceedings that is instituted within a reasonable time by the legal heirs of the original grantee. The Apex Court in the case 15 from CHHEDI LAL YADAV V. HARI KISHORE YADAV reported in (2018) 12 SCC 527, wherein it has held as follows:
"10. In Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn., "reasonable time" is explained as follows:
"That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer."
Thus, time must be reckoned reasonably, not only in order to preserve rights and advantages a party possesses, but equally to protect each party from the losses he ought not to suffer. Thus, whether an action has been taken within a reasonable time, must also be viewed from the point of view of the party who might suffer losses.
11. In the instant case, we find that the High Court had observed as follows:
"The auction-sale took place in 1942, the application for restoration of the lands was first made in 1975 and the appeal from it was dismissed for default in 1983. In the meanwhile, the disputed lands changed hands twice and were in the possession of the appellant-writ petitioners from 1962 and 1986. Such a 16 long-settled position could only be upset for some very compelling reasons and on making out an extremely strong case for restoration of the appeal. There is nothing on record to suggest anything remotely like that. Secondly, the action of the Additional Collector in restoring the appeal even without any notice to the appellant-writ petitioners was clearly illegal and in contravention of Sections 4 and 5 of the Act."
The High Court was clearly right in the view it had taken.
12. It is argued on behalf of the appellants that power of the Additional Collector for restoration of lands could have been exercised suo motu and since no limitation was prescribed for exercise of such power, the delay in this case may be overlooked. This submission presupposes that where the power can be exercised suo motu, such exercise may be undertaken at any time. The submission is directly contrary to a decision of this Court in Collector v. D. Narsing Rao [Collector v. D. Narsing Rao, (2015) 3 SCC 695 : (2015) 2 SCC (Civ) 396] where this Court affirmed the view [Collector v. D. Narasing Rao, 2010 SCC OnLine AP 406 : (2010) 6 ALD 748] of the Andhra Pradesh High Court. Para '17' of the judgment reads as follows: (D. Narsing Rao case [Collector v. D. Narsing Rao, (2015) 3 SCC 17 695 : (2015) 2 SCC (Civ) 396] , SCC p. 706, para
17) "17. ... that the suo motu revision undertaken after a long lapse of time, even in the absence of any period of limitation was arbitrary and opposed to the concept of rule of law."
Thus, we have no hesitation in rejecting this contention.
13. In our view, where no period of limitation is prescribed, the action must be taken, whether suo motu or on the application of the parties, within a reasonable time. Undoubtedly, what is reasonable time would depend on the circumstances of each case and the purpose of the statute. In the case before us, we are clear that the action is grossly delayed and taken beyond reasonable time, particularly, in view of the fact that the land was transferred several times during this period, obviously, in the faith that it is not encumbered by any rights.
14. We are of the view that merely because the legislation is beneficial and no limitation is prescribed, the rights acquired by persons cannot be ignored lightly and proceedings cannot be initiated after unreasonable delay as observed by this Court in Situ Sahu v. State of Jharkhand [Situ Sahu v. State of Jharkhand, (2004) 8 SCC 340]."
18The Apex Court in the case of NEKKANTI RAMA LAKSHMI VS. STATE OF KARNATAKA AND ANOTHER reported in 2017 SCC ONLINE 1862, wherein it is held as follows:
"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 45 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 v. Hargovind Jasraj6 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 on the oft-quoted passage in Smith v. East Elloe Rural District Council7 which reads as under :
"...An order, even if not made in good faith, is still an act capable of legal 19 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 latent defects (Ed. Wade and Forsyth in Administrative Law, 7th Edn.1994."
10. In the case of Pune Municipal Corporation v. State of Maharashtra8, this court reproduced the following observations 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 20 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)
11. 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 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.
12. 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."
The Apex Court has further reiterated in the case of MR.VIVEK M HINDUJA AND OTHERS v. MR. ASWATHA AND OTHERS reported in 2019 Kar.L.J. 819 (SC), 21 "8. Shri R.S. Hedge appearing for the appellant urged several grounds. It is contended by Shri Hegde that proceedings are void for non-joinder of the first purchaser of the land. It is further contended that the non alienation period, i.e., period for which Kriyappa could not have transferred the land was not 15 years but was 10 years under the Rules of the land and, therefore, transfer was legal having been made after 10 years. However, the applicant had not produced the original grant, and, therefore, it was not possible for the purpose to come to a conclusion that the transfer was in breach of the non alienation period. We, however, find that one of the points raised on behalf of the appellant deserves acceptance. That point is that the application for restoration of the land was made by the heir of Kriyappa after unreasonably long period, i.e. 25 years from the Act came into force. Section 4 of the Act itself has a ubiquitous effect in it, annulling the transfer of granted land "made either before or after the commencement of the Act." as null and void. The Act does not specify how much before the commencement of the Act. Thus on a plain and critical reading of the Act, it seems that it covers proceedings made in time before the Act was enacted. However, we are not called upon to deal with the reasonableness of this provision and we do not propose to say anything on this. The validity of the Act has been upheld by a judgment of this Court in Machegowda v. State of Karnataka, (1984) 3 SCC 301.
229. 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 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 v. Hari Kishore Yadav (D) Thr. Lrs., 2017 (6) SCALE 459 and also in the case of Ningappa v. Dy. Commissioner (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 23 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 dismissed on that ground. Accordingly, the judgments of the Karnataka High Court, namely, R. Rudrappa v. Deputy Commissioner, 2000 (1) Karnataka Law Journal, 523, Maddurappa v. State of Karnataka, 2006 (4) Karnataka Law Journal, 303 and G. Maregouda v. The Deputy Commissioner, Chitradurga District, Chitradurga, 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."
The law laid down in the afore-extracted judgments of the Apex Court is followed by the learned Division Bench of this Court in the case of MUNIMADA @ MUNIMADAPPA V. SPECIAL DEPUTY COMMISSIONER, BANGALORE URBAN DISTRICT reported in ILR 2019 KAR 4073, it was held as follows:
"4. We have given careful consideration to the submissions. Perusal of Section 4 of the said Act will show that sub-Section (1) which starts with a non obstante clause declares certain transfers as 24 null and void. For ready reference, Section 4 is quoted, which reads thus:
"4. Prohibition of transfer of granted lands.- (1) Not with standing anything in any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or the law providing for such grant, or sub-section (2) shall be null and void and no right, title or interest in such land shall be conveyed or be deemed ever to have conveyed by such transfer.
(2) No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government.
(3) The provisions of sub-sections (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a Civil Court or of any award or order of any other authority."
Then comes Section 5, which reads thus:
"5. Resumption and restitution of granted lands.- (1) Where, on application by any interested person or on information given in writing by any person or suo motu, and after 25 such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4, he may. -
(a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed:
Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard;
(b) restore such land to the original grantee or his legal, heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir, such land shall be deemed to have vested in the Government free from all encumbrances.
The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the rides relating to grant of land. (1-A) After an enquiry referred to in subsection (1) the Assistant Commissioner may, if he is satisfied that transfer of any granted land is not null and void pass an order accordingly. (2) Subject to the orders of the Deputy Commissioner under Section 5-A, any order passed under sub-sections (1) and (1-A) shall be final and shall not be 26 questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by the Assistant Commissioner in pursuance of any power conferred by or under this Act.
(3) For the purposes of this section, where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of Section
4."
5. Section 5 confers a power on the Assistant Commissioner of passing an order of taking possession of the land, the alienation of which is null and void as per sub-Section (1) of Section 4. In such a case, the Assistant Commissioner can exercise the power of evicting all persons found in possession of the granted land.
6. Before passing an order under Section 5, the Assistant Commissioner must be satisfied that the transfer of any granted land is null and void under sub- Section (1) of Section 4. Sub-Section (1) of Section 5 provides a remedy to any 27 interested person to apply to the Assistant Commissioner for exercising powers of resumption of the granted lands. The power can also be exercised suo motu.
7. Now we turn to the decision of the Apex Court in the case of Nekkanti Rama Lakshmi, (supra). Paragraph 8 of the said decision reads thus:
"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 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 v. Hari Kishore Yadav (D) Thr. Lrs., (2017) 6 Scale 459 and also in the case of Ningappa v. Dy.
Commissioner, (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 28 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, 195V. 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 dismissed on that ground. Accordingly, the judgments of the Karnataka High Court, namely. R.Rudrappa v.
Deputy v. Commissioner, (2000) 1 Kant LJ 523, Maddurappa v. State of Karnataka, (2006) 4 Kant LJ 303 29 and G. Maregouda v. The Deputy Commissioner, Chitradurga District, Chitradurga and Ors, (2000) 2 Kant LJ (SN) 48 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."
(Underlines supplied)
8. Careful perusal of paragraph 8 shows that the Apex Court has observed that Section 5 does not prescribe any period within which an application can be made by an interested party for seeking resumption. It also notes that it does not prescribe any period within which suo motu action under sub-Section (1) can be taken. The Apex Court reiterated the law laid down in its earlier decision in Chhedi Lal Yadav v. Hari Kishore Yadav (Dead) Through Legal Representatives [(2018) 12 SCC 527] . The Apex Court held that when the statute does not provide for a period of limitation, the provisions of the statute must be invoked within a reasonable time. The Apex Court also held that in such a case, whether on the application of the parties or suo motu, action must be taken within a 30 reasonabletime. As the Apex Court has relied upon the earlier decision in the case of Ghhedilal Yadav (supra), we must make a reference to the said decision. This was a case arising under an enactment of State of Bihar which provided for restoration of possession. The issue before the Apex Court was whether making an application for restoration of a land after a period of 24 years from the date of enactment can be said to be an action taken within a reasonable time. In paragraph 13 of the said decision, the Apex Court held thus:
"13. In our view, where no period of limitation is prescribed, the action must he taken, whether suo motu or on the application of the parties, within a reasonable time.
Undoubtedly, what is reasonable time would depend on the circumstances of each case and the purpose of the statute. In the case before us, we are clear that the action is grossly delayed and taken beyond reasonable time, particularly, in view-of the fact that the land was transferred several times during this period, obviously, in the faith that it is not encumbered by any rights."31
(Underlines supplied)
9. We must note that in paragraph 12 of the said decision, the Apex Court also dealt with an argument that the power of restoration under the statute could be exercised suo motu and as no limitation is prescribed, when action is taken suo motu, the delay has to be overlooked. Even the said contention was negatived by the Apex Court by relying upon its earlier decision in the case of Collector v. D. Narsing Rao [(2015) 3 SCC 695] . Another argument which was negatived in the case of Chhedilal Yadav, (supra) was that as the legislation which provided for restoration or resumption is a beneficial Legislation, the rights acquired by persons in contravention of the Legislation cannot be ignored lightly. Even the said argument is negatived by the Apex Court paragraph 14.
10. Therefore, in our considered view, the issue whether the grant provided a clause providing a permanent embargo on the alienation or whether it provided for an embargo on alienation for a limited period may not be relevant at all while we apply the law laid down by the Apex Court in the case of Nekkanti Rama Lakshmi, 32 (supra). What is held by the Apex Court is that the remedy under Section 5 must be taken recourse to within a reasonable time. Therefore, irrespective of the fact whether the prohibition on alienation was for a limited period or whether there was a permanent prohibition on alienation, the law laid down by the Apex Court in the said decision will squarely apply.
11. In all the four cases in hand, apart from the gross delay from the date of alienation till the date of making the applications, admittedly, the applications under sub-Section (1) of Section 5 were made after lapse of about 27 years from the date on which the said Act came into force. By no stretch of imagination it can be said that the delay of 27 years is not unreasonable. Therefore, we concur with the view taken by the Learned Single Judge, which is consistent with the law laid down by the Apex Court.
12. Now coming to W.A. No. 374/2019, even assuming that sub-Section (1) of Section 4 applies to any transfer and not only to the transfer effected by the grantee, still the application under sub- Section (1) of Section 5 will have to be made within a reasonable time. In this 33 case also, the application was made 27 years after the said Act came into force. The first two sale deeds were of the date prior to the date on which the said Act came into force, Notwithstanding the rejection of the application under sub- Section (1) of Section 5, the contention of the appellant that his predecessor had not alienated the said property remains open which can be always agitated by filing an appropriate proceeding, if permissible at this stage, in accordance with law.
The afore-extracted judgments are applicable to the facts of the case, as the land in question was granted on 21.01.1942, and was sold on 03.10.1951, and in terms of the observations made hereinabove, the proceedings were instituted in the year 2011, that is, 32 years of the said Act coming into force. Therefore, in terms of the law laid down by the Apex Court and that of the learned Division Bench of this Court, the memorandum at Annexure 'A' impugned is illegal and unsustainable.
14. For the aforestated reasons, the following order:
34a. The writ petition is allowed.
b. The impugned memorandum dated 06.09.2011 of the third respondent - Tahsildhar in case No.PTCL/77/11- 12 is quashed.
Sd/-
JUDGE nvj CT:MJ