Karnataka High Court
Dr Manmohan Attavar vs S Ravishankar on 20 November, 2018
Author: G.Narendar
Bench: G.Narendar
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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.37695/2017 (SCST)
BETWEEN
DR. MANMOHAN ATTAVAR
SINCE DEAD BY HIS LEGAL REPRESENTATIVES
(a) SANTOSH ATTAVAR,
S/O. DR. MANMOHAN ATTAVAR,
AGED 45 YEARS,
R/AT: NO.580, 10TH CROSS,
2ND MAIN, 3RD PHASE,
J.P.NAGAR, III PHASE,
BENGALURU-560078.
(b) SMT. JANE RUHAMA RASHMI ATTAVAR
D/O. DR. MANMOHAN ATTAVAR
AGED ABOUT 46 YEARS,
R/AT: NO.38/1, 30TH CROSS,
III MAIN ROAD, JAYANAGAR
7TH BLOCK, BENGALURU-560082. ... PETITIONERS
(BY SRI.S.SHAKER SHETTY, ADV.)
AND
1. S RAVISHANKAR
S/O LATE M. SHANTHARAJU
AGED ABOUT 47 YEARS
2. B S SURESH KUMAR
S/O LATE M SHANTHARAJU
AGED ABOUT 35 YEARS
2
3. B S SHIVASHANKAR
S/O LATE M SHANTHARAJU
AGED ABOUT 58 YEARS
R1 TO R3 ARE RESIDING AT NO.94/15,
I MAIN, II CROSS, VALMIKINAGAR,
MYSORE ROAD
BENGALURU-560026.
4. ASSISTANT COMMISSIONER
BANGALORE SOUTH DIVISION
BENGALURU.
5. DEPUTY COMMISSIONER
BANGALORE URBAN DISTRICT
BENGALURU. ... RESPONDENTS
(BY SRI.G.PAPI REDDY, ADV. FOR R1 TO R3,
SMT. SAVITHRAMMA, HCGP FOR R4 & R5.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE ORDER DTD:2.11.2012 PASSED IN SC.ST.11/2010-11 BY
THE R-4 AS PER ANNEXURE-B ACCORDING TO LAW 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
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ORDER
Heard the learned counsel for the petitioner/s and the learned HCGP for respondent-State and the learned counsel for the respondents No.1 to 3.
2. The petitioners are before this Court praying to quash the order impugned, vide Annexure-B to the writ petition, passed by the 4 t h respondent and also the order, vide Annexure-C passed by the 5 t h respondent Appellate Authority, who has been pleased to uphold the order of the 4 t h respondent dated 2.11.2012 by holding that the sale effected on 3.6.1977 is hit by the provisions of Section 4(1) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as 'the Act' for short) as the same is effected without prior approval of the Government after commencement of the Act.
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3. The brief facts of the case are, that one Munigangappa was conferred with a grant of land measuring 4 acres comprised in Sy.No.22 (New No.43), situated at Channasandra village, Uttarahalli Hobli, Bengaluru South taluk under the grant certificate Annexure-A dated 19.9.1944 and that they belonged to Scheduled Caste; that in violation of the provisions of the Act, the petitioner obtained a sale deed dated 3.6.1977 from the children of the original grantee.
4. It is the case of the petitioner/s that the respondents No.1 to 3 approached the 4th respondent with an application under Section 5 of the Act contending that the sale effected is a violation of the provisions of the Act and hence prayed that the land be restored to the family of the original grantee who belonged to Scheduled Caste and was the beneficiary of the free grant. That the application came to be numbered as case No.K.SC.ST.(S)11/2010-11. The 4th respondent 5 accepting the claim of the respondents No.1 to 3 herein, by order dated 2.11.2012 vide Annexure-B to the petition was pleased to hold that the sale effected on 3.6.1977 was in violation of the provisions of Section 4(1) and Section 5 of the Act and hence the same being invalid, the land stood vested in the State in terms of Section 5(1)(a) of the Act and in terms of provisions of section 5(1)(b) of the Act, the petitioners/respondents No.1 to 3 herein were entitled for resumption and restoration of the possession of the land in their favour. Aggrieved by the said order, the petitioner herein approached the 5 t h respondent vide Annexure-C to the writ petition dated 3.8.2017, who was pleased to uphold the order of the 4th respondent by holding that the sale effected on 3.6.1977 is in violation of provisions of the Act.
5. It is contended on behalf of the petitioners that the 5 t h respondent has passed the impugned order without appreciating the oral and 6 documentary evidence on record. That though the land having been granted in the year 1944, and the sale transaction having been effected on 3.6.1977, the same is not in violation of the terms of the grant as the grant was not free grant or for upset price but for full consideration and the sale being prior to the coming into force of the Act, question of seeking permission would not arise and hence the sale transaction is not hit by the provisions of Section 4(1) of the Act.
6. Per contra, the learned counsel for the respondents No.1 to 3 would reiterate the findings of the 4 t h and 5 th respondents and would contend that the 1 s t and 2 n d respondents have rightly held that the sale is effected without prior permission of the Government and hence hit by the provisions of the Act. The Petitioner would also contend that the instant proceedings initiated in the year 2010-11 is highly belated and he would place reliance on the ruling of the Apex Court rendered in the case of 7 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. Ho wever, the question that arises is with regard to ter ms of Section 5 of the Act which enables any interested person to make an application f or having the transf er annulled as void under Sec tion 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 Statu te provided f or a period of limitation, provisions of the Statute mus t be invoked within a reasonable time. It is held that action whether on an application of the par ties, or suo motu, must be taken within a reasonable time. That action arose under the provisions of a simil ar Act which provided f or restoration of certain lands to f ar mers which were sold f or arrears of rent or f rom which they were e jected f or arrears of land from 1 s t January, 1939 to 31 s t December, 1950. This relief was granted to the f armers due to f lood in the Kosi River which make agricul tural operations impossible. An application f or 8 restor ation was made af ter 24 years and was allo we d. 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 f or restor ation of land made by respondent-Rajappa was made af ter an unreasonably long period and was liable to be dismissed on that ground.
Accordingly, the judgments of the
Karnataka High Cour t, 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 Ac t and, theref ore, an application can be made at any time, are overruled. Order accordingly."
7. 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 9 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.
8. Learned HCGP would also place on record the Judgment rendered by this Court in W.P. No.6051/2008 (SC/ST) C/w.W.P. 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.
9. In the instant case, the provisions of Section 5 are invoked after passage of more than 33 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. 10
10. The contention on behalf of the petitioners merits consideration. The learned counsel for the respondents 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 case of Manchegowda, the law is settled by a 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. 11
11. 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.
"12. In pursuance of this policy, the Legisl ature is undoubtedly competent to pass an enactment providing that tr ansf ers of such granted lands will be void and not merely voidable f or properly saf eguarding and protec ting the interests of the Scheduled Castes and Scheduled Tribes f or whose benef it only these lands had been granted. Even in the absence of any such statutory provisio ns, the tr ansf er of granted lands in contravention of the ter ms of the grant or in breach of any law, rule or regul ation covering such grant will clearly be voidable and the resumption of such granted lands after avoiding the voidable tr ansf ers in accordance with law will be per mitted. Avoidance of such voidable tr ansf ers and resumption of the granted 12 lands through process of law is bound to take time. Any negligence and delay on the par t of the authorities entitled to take action to avoid such transf ers through appropriate legal process f or resumption of such grant may be f urther impediments in the matter of avoiding such transf ers and resumption of possession of the gr anted lands.
Prolonged legal proceedings will undoubtedly be prejudicial to the interests of the members of the
Scheduled Castes and Scheduled Tribes f or whose benef it the granted lands are intended to be resumed. As transf ers of granted lands in contravention of the terms of the grant or any law, regul ation or rule governing such grants can be legally avoided and possession of such lands c an be recovered through process of law, it mus t be held that the Legisl ature f or the purpose of avoiding delay and harassment of protracted litigation and in f urthering its object of speedy restor ation of these granted lands to the members of the weaker communities is perf ectly competent to make suitable provision f or resumption of such granted lands by stipulating in the enactment that tr ansf ers of such lands in contr avention 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 f or achieving this purpose without recourse to prolonged litigation in cour t in the larger interests of benef iting the members of the Scheduled Castes and Scheduled Tribes."
(underlining by this Court) 13
12. The Hon'ble Apex Court has been prophetic in rendering the said ruling by observing that, in statutes where no 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 respondents No.1 to 3 after more than 33 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 petitioner/s is acceptable.
13. 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 14 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 wherein 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 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 hereinbef ore is suff icient to quash and set aside the order of the House Allotment Off icer. Ho wever, 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 Basantr ai Shar ma 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 Basantr ai Sharma died, no one raised the controversy about the entry of the appellant in the premises as being unauthorised or in contr avention of clause 22. Basantr ai Sharma in his lif e 15 time tried to obtain possession of the premises f rom the appellant alleging grounds avail able to him under the Rent Control Order other than unauthorized entry. This would permit an inf erence that Basantr ai Shar ma accepted the appellant as his tenant and his tenancy did not suff er from any inf irmity. Af ter Basantrai Shar ma died, his successor-in- interest one Smt. Usha Rani N. Shar ma did not r aise any controversy about the occupation of the premises by the appellant. One Mr.S.P. Pathak, a total stranger has come f or ward 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. Basan tr ai Shar ma was alive in 1967. If appellant came into the premises because he was holding an off ice of prof it, obviously Basantrai Sharma would not miss the oppor tunity to evic t the appellant because he was other wise also trying to do the same thing. Rent was accepted without question from the appellant by Basantrai Sharma till his death and thereaf ter. Could he be at this distance of time, thro wn out on the ground that his initial entry was unauthorized. To slightly differently f ormul ate the proposition, could the initial unauthorized entry, if there be any, per mit a House Allotment Officer, 22 years af ter the entry, to evict the appellant on the short ground that he entered the premises in contravention of clause 22(2)? Undoubtedly, po wer is conf erred on the Collector to see that the provisions of the Rent Control Order 16 which disclosed a public policy are eff ectively implemented and if the Collector theref ore, comes across inf ormation that there is a contr avention, he is clothed with adequate po wer to set right the contravention by ejec ting anyone who comes into the premises in contravention of the provisions. But when the power is conf erred to eff ectuate 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 l andlord to some extent in pari delicto could turn the tables against the person who was in possession f or 22 years as a tenant. In such a situation, even though the House Allotment Of f icer was to reach an aff irmative conclusion that the initial entry 22 years back was an unauthorised entry and that failure to vacate premises till 9 years af ter retirement was not proper, yet it was no t obligatory upon him to pass a peremptory order of evic tion 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 connec tion, we may ref er to Murlidhar Agar wal v. State of U.P. wherein one Ram Agyan Singh who came into possession of premises without an order of allotmen t in his f avour as required by sec. 7(2) of the U.P. (Temporary) Control of Rent and Evic tion Act, 1947, was permitted to retain the premises by treating his occupation lawf ul and this court declined to interf ere with that order. No doubt it 17 must be conf essed that sec. 7A conf erred po wer on the Distric t Magistr ate to take action against unauthorised occupation in contr avention of the provisions of the U.P. (Temporary) Control of Rent and Evic tion Act, 1947, but there was a proviso to the section which enabled the District Magistr ate not to evic t a person f ound to be in unauthorized occupation, if the District Magistr ate was satisf ied that there has been undue delay or other wise it is inexpedient to do so. There is no such proviso to clause 28 which conf ers power on the Collector to take necessary ac tion f or the purpose of securing compliance with the Rent Control Order. But as stated earlier, where po wer is conf erred to eff ectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercise of po wer inheres its exercise within a reasonable time. This is too well established to need buttressing by a precedent. However, one is readily avail able in State of Gujarat v. Patel Raghav Natha & Ors. In that case Commissioner exercised suo motu revisional jurisdiction under sec. 211 of the Bombay Land Revenue Code which did not prescribe any period of limitation f or exercise of revisional jurisdic tion. The Commissioner exercised revisional jurisdiction one year af ter the Collec tor 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 Gujar at, this Cour t declined to interf ere holding inter alia that the revisional po wer in the absence of prescribed period of limitation must be exercised within a reasonable time and 18 period of one year was held to be too late. This aspect must be present to the mind of House Allotment Of f icer bef ore just rushing in on an unproved technic al contravention brought to his notice contrived by the successor-in-interest of the deceased landlord, and evicting the appellant 22 years af ter his entry and 9 years af ter his re tirement on the shor t ground that his entry in the year 1954 was in contravention of clause 22(2)."
14. 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 and others reported in (2009) 9 SCC 352 wherein at paragraph No.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 19 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 paragraphs No.10, 11 and 12 is reproduced below.
"10. Recently, in the case of State of Punjab and Others v. Bhatinda Distric t Coop. Milk Producers Union Ltd. while dealing with the po wer of revision under Section 21 of the Punjab General Sales Tax Ac t, 1948, it has been held: (SCC p.367, paras 17-19) "17. A bare reading of Sec tion 21 of the Act would reveal that although no period of limitation has been prescribed theref ore, the same would not mean that the suo motu po wer c an be exercised at any time.
18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, ho wever, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant f actors.
19. Revisional jurisdic tion, in our opinion, should ordinarily be exercised within a period of three years having regard to the purpor t in terms of the said Act. In any event, the same should 20 not exceed the period of f ive years. The view of the High Cour t, thus, cannot be said to be unreasonable. Reasonable period, keeping in vie w the discussions made hereinbef ore, must be f ound out f rom the statutory scheme. As indic ated hereinbef ore, maximum period of limitation provided f or in sub- section (6) of Section 11 of the Act is f ive ye ars."
11. It seems to be f airly settled that if a statute does not prescribed the time-limit f or exercise of revisional po wer, it does not mean that such po wer can be exercises at any time; rather it should be exercised within a reasonable time. It is so because the law does not expec t a settled thing to be unsettled af ter a long lapse of time. Where the legislature does not provide f or any length of time within which the po wer of revision is to be exercised by the authority, suo motu or other wise, it is playing that exercise of such po wer within reasonable time is inherent therein.
12. Ordinarily, the reasonable period within which the po wer of revision may be exercised would be 3 years under Section 257 of the Mahar ashtra Land Revenue Code subject, of course, to the exceptional circumstances in a given case, but surely exercise of revisional po wer af ter a l apse of 17 years is not a reasonable time. Invocation of revisional po wer by the Sub-Divisional Off icer under Section 257 of the Mahar ashtra Land Revenue Code is plainly an abuse of process in the f ac ts and circumstance 21 of the case assuming that the order of the T ahsildar passed on 30.03.1976 is f lawd and legally not correct."
15. 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.
16. Law on the point of delay and laches is well settled by a catena of Judgments by 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.
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17. The law settled by the Apex Court squarely applies to the facts of the instant case also. The grant was of the year 1944 and the sale deed was executed on 3.6.1977. In effect, third party rights came to be created and the parties were also in settled positions.
18. In this context, gainful reference could be made to a 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 Cour t has cautioned the High Cour ts not to enter tain the wr it petitions where there is inordinate delay while exercising jurisdiction under Article 226 of the Constitution of India.
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 f or sound exercise of discretion by the High Cour t in this regard is not the physic al running of time such but the test is whether by reason of delay, there is such negligence on the par t of the 23 petitioner so as to inf er that he has given up his claim or where the petitioner has moved the wr it Court, the rights of the third par ties have come into being which should not be allo wed to disturb unless there is reasonable explanation f or the delay.
19. On the ground of gross delay and laches also, the application under Section 5(2) of the Act requires to be rejected and consequently, the writ petition requires to be allowed.
20. It is not in dispute that the 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 Section 5 of the Act, 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 33 years and there is absolutely no ground urged which is worthy of being labeled as an explanation for the 24 gross and inordinate delay. Hence, even on this ground, the writ petition is liable to be allowed.
21. In view of the above discussion, this Court finds merit in the present writ petition. Accordingly, the same is allowed. Both the impugned orders vide Annexures-B and C are hereby quashed.
22. In the light of the law and facts involved in the litigation, there shall be no order as to costs.
Sd/-
JUDGE Mrk/-
CT-HR