Karnataka High Court
M B Nagaraja vs State Of Karnataka on 18 March, 2020
Author: H T Narendra Prasad
Bench: H. T. Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
WRIT PETITION No.4474 OF 2018 (SC-ST)
BETWEEN:
1. M.B. Nagaraja
S/o Basavanyappa,
Aged about 66 years,
2. M.B. Mahendra
S/o Basavanyappa,
Aged about 60 years,
Both are Agriculturist and
R/o Saluru Village,
Anjanapura Hobli,
Shikaripura Taluk - 577 427,
Shivamogga District.
...Petitioners
(By Sri.P.N. Harish, Advocate)
AND:
1. State of Karnataka
By its Principal Secretary,
Revenue Department,
M.S. Building,
Bengaluru - 560 001.
2. The Deputy Commissioner,
Shivamogga District,
Shivamogga - 577 201.
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3. Padmamma
W/o Hanumanthappa,
4. Nagaveni
D/o Hanumanthappa,
5. Sudha
D/o Hanumanthappa,
6. Veena
D/o Hanumanthappa,
7. Swami
S/o Hanumanthappa,
8. Bharath
S/o Hanumanthappa,
Respondent Nos.3 to 8 are
Major in age
R/o Bhovi Colony,
Chiluru Village,
Honnali Taluk - 577 217,
Davanagere District.
...Respondents
(By Smt.Savithramma, HCGP for R1 and R2;
R3 to R8 are served and unrepresented)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India, praying to quash the order dated
18.01.2018 passed by respondent No.2 in SC.ST No.14/2009-10
produced as per Annexure-D and thereby confirm the order of
Assistant Commissioner, Sagar passed in PTCL.CR.13/1992-93
dated 08.06.2009 produced as per Annexure-C and etc.,
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This Petition coming on for Hearing, this day, the Court
made the following:
ORDER
This writ petition is directed against the order dated 18.01.2018 passed by respondent No.2-the Deputy Commissioner, whereby the authority has allowed the appeal and resumed the land in favour of legal representative of one Sunka Bhovi under Section 5A of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as 'the Act' for short).
2. The case of the petitioners is that land bearing Sy. Nos.403/1 and 403/2 measuring 01 acre 01 gunta, and 36 guntas respectively, situated at Saluru Village, Anjanapura Hobli, Shikaripura Taluk was belonging to one Sunka Bhovi and he has purchased the property in a public auction in the year 1941-42. Land bearing Sy. Nos.404, 405, 406 and 407 measuring 01 acre and 39 4 guntas, 02 acres 03 guntas, 01 acre 28 guntas and 01 acre 39 guntas respectively, situated at Saluru Village, Anjanapura Hobli, Shikaripura Taluk was belonging to one Thimma Bhovi and he purchased the same in a public auction in the year 1941-42 and that the said properties are their absolute properties. Lands in Sy. Nos.404 and 405 have been sold by Thimma Bhovi in favour of Manjappa in the year 1952-53 and repurchased the same from Manjappa and Karibasappa under a registered Sale Deed dated 06.03.1956. The said Thimma Bhovi has sold the lands in Sy. Nos.404, 405 and 406 to Salur Basavanyappa under a registered Sale Deed dated 18.05.1966. The legal representative of Thimma Bhovi has filed an application under Section 5 of the Act for resumption of lands in respect of Sy. Nos.404, 405 and 406 before the Assistant Commissioner in the year 1979-80 on the ground that said lands were granted in favour of Thimma Bhovi under Darkasth Rules with a condition not to alienate the property for a period of 20 years. The Assistant 5 Commissioner by order dated 07.10.1988 has dismissed the application. The same has attained finality. Thereafter in the year 1992-93, the legal representative of Sunka Bhovi has filed an application under Section 5 of the Act for resumption of lands in respect of Sy. Nos.403/1, 403/2, 407 including Sy. Nos.404, 405 and 406 before the Assistant Commissioner. The Assistant Commissioner by order dated 08.06.2009 has dismissed the application on the ground that application for resumption of land filed in respect of Sy. Nos.404, 405 and 406, amounts to resjudicata and in respect of other survey numbers i.e., 403/1, 403/2 and 407, there is no violation of PTCL Act. Being aggrieved by the same, the legal representative of original grantee-Sunka Bhovi has filed an appeal before the Deputy Commissioner under Section 5A of the Act. The Deputy Commissioner by order dated 18.01.2018 has allowed the appeal setting aside the order passed by the Assistant Commissioner and restored the land in favour of 6 legal representative of Sunka Bhovi. Being aggrieved by the same, the petitioners are before this Court.
3. Sri. P.N. Harish, learned counsel appearing for the petitioners contended that the land in dispute is not a granted land. Thimma Bhovi and Sunka Bhovi have purchased the properties in a public auction by paying the market price. Therefore, the PTCL Act is not applicable.
4. Secondly, he contended that even assuming that land in dispute is a granted land, the application filed by the legal representative of Thimma Bhovi in respect of Sy. Nos.404, 405 and 406, the Assistant Commissioner has rejected the claim by order dated 07.10.1988 vide Annexure-B. Therefore, second application filed by the legal representative of Sunka Bhovi in the year 1992 is not maintainable and it is hit by the principles of resjudicata. In support of his contention, he has relied upon the decision of this Court in Writ Appeal No.3855/2019 disposed of on 06.11.2019.
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5. Thirdly, he contended that in respect of lands in Sy. Nos.403/1, 403/2 and 407, which belongs to Sunka Bhovi, the application for resumption of land has been filed in the year 1992. The legal representative has sold the land on 06.03.1956. The PTCL Act came into force on 01.01.1979. The application for resumption of land was filed in the year 1992-93 i.e., after lapse of 13 years from the date of Act came into force and there is a delay in filing the application. The application itself is not maintainable. In support of his contention, he has relied upon the judgment of the Hon'ble Apex Court in the case of Nekkanti Rama Lakshmi -v- State of Karnataka and Another reported in 2018 (1) Kar. LR 5 (SC) and also relied upon the decision of the Division Bench of this Court in the case of Ningamma Vs The Tibetain Children's Village Hqrs and others in W.A. No.4092/2017 disposed of on 09.04.2019. Hence, he prays for allowing the petitions.
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6. Respondent Nos.3 to 8 are served and unrepresented.
7. Smt. Savithramma, learned Government Pleader appearing for respondent Nos.1 and 2 contended that lands were granted in favour of Thimma Bhovi and Sunka Bhovi in the year 1941-42. The rules prevailing as on the date of the grant "non-alienation forever". The legal representative of original grantees by violating the conditions of Land Grant Rules has sold the land in the year 1956. Therefore, the Deputy Commissioner has rightly resumed the land in favour of legal representative of original grantee.
8. Heard the learned counsel for the parties and perused the writ papers.
9. The case of the petitioners is that land bearing Sy. Nos.404, 405, 406 and 407 situated at Sulur Village, Anjanapura Hobli, Shikaripura Taluk was originally belonging to one Thimma Bhovi. The land bearing Sy. Nos.403/1 and 403/2 situated at same village belonging to 9 one Sunka Bhovi. They have sold the land in favour of petitioners under a registered Sale Deed.
10. Even though learned counsel for the petitioners contended that land in dispute is not a granted land, he does not press his first contention and submits that he is pressing second and third contentions regarding resjudicata and delay in filing the application. In view of the above, this Court will not decide the dispute as to whether the said land is a granted land or not?
11. In respect of second contention of learned counsel for the petitioners, second application for resumption of land filed in respect of land bearing Sy. Nos.404, 405 and 406 is not maintainable since the legal representative of Thimma Bhovi had filed an application in the year 1979-80 and the same has been dismissed by the Assistant Commissioner by order dated 07.10.1988. The legal representative of Thimma Bhovi has not challenged the same and it has attained finality. Thereafter, one 10 Hanumantha Bhovi-the legal representative of Sunka Bhovi has filed an application for resumption of land in respect of Sy. Nos.403/1, 403/2, and 407 including Sy. Nos.404, 405 and 406 before the Assistant Commissioner in the year 1992-93. The Assistant Commissioner by order dated 08.06.2009 has dismissed the application and in respect of Sy. Nos.404, 405 and 406 has held that there was already an order passed by the Assistant Commissioner. The second application filed by legal representative of Sunka Bhovi for resumption of the land is not maintainable. The Division Bench of this Court in Writ Appeal No.3855/2019 disposed of on 06.11.2019, at paragraph No.11 held as under:-
"11. In view of the aforesaid undisputed facts and circumstances, we are of the view that once the proceedings under Sections 4 and 5 of the PTCL Act are filed/initiated and the same are either withdrawn or dismissed on merits, a fresh petition/second petition on the same cause of action and the same subject matter under Sections 4 and 5 of the PTCL Act 11 is not maintainable and the same is liable to be dismissed on this ground alone. The second petition is clearly barred by the principles of estoppel, acquiescence, abandonment and waiver. Accordingly, though a finding in this regard has not been recorded by either the learned Single Judge or the authorities, having regard to the undisputed material on record, a second petition under Sections 4 and 5 of the PTCL Act would not be maintainable and the same is liable to be rejected on this ground alone."
12. In view of the above, the application for resumption of land filed in respect of Sy. Nos.404, 405 and 406 is not maintainable. Without considering this aspect of the matter, the Deputy Commissioner has passed the impugned order. Hence, the impugned order is unsustainable.
14. In respect of Sy. Nos.403/1, 403/2 and 407, the application for resumption of land has been filed by the legal representative of Sunka Bhovi in the year 1992-93. 12 The legal representative has sold the land in favour of one Manjappa and Karibasappa through a registered Sale Deed dated 06.03.1956. The PTCL Act came into force on 01.01.1979. The application for resumption of land has been filed in the year 1992-93 i.e., after lapse of 13 years from the date of the Act came into force. This view is fortified by the Apex Court in the case of Nekkanti Rama Lakshmi (supra),at paragraph No.8 has held as under:
"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 & 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 13 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 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 14 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."
15. It is very clear from the above judgment of the Apex Court that the application under Sections 4 and 5 of the Act for resumption of the land has to be filed within a reasonable time. The Division Bench of this Court in the Writ Appeal No.4092/2017 has held that application filed after lapse of 12 years is a delay in invoking the provisions of Sections 4 and 5 of the Act. In the case on hand, as per the case of the legal representative of original grantee, the land has been granted in the year 1942-43. The legal representative has sold the land on 06.03.1956. The PTCL Act came into force on 01.01.1979. The application for resumption of land has been filed in the year 1992-93 i.e., after lapse of 13 years from the date of the Act came into force. In view of the law laid down in the aforesaid judgment, the application itself is not maintainable. 15
16. In view of the above, the impugned order at Annexure-D is liable to be quashed. Accordingly, the writ petition is allowed. Order dated 18.01.2018 passed by respondent No.2 vide Annexure-D is quashed.
Sd/-
JUDGE MBM