Karnataka High Court
Sri H Mahanthesh vs The Deputy Commissioner on 21 June, 2023
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NC: 2023:KHC:21501
WP No. 42648 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.42648 OF 2018 (SC-ST)
BETWEEN:
SRI H MAHANTHESH
S/O LATE SRI HALAPPA
AGED 59 YEARS
R/O NALLURU VILLAGE
CHANNAGIRI TALUK
DAVANAGERE DISTRICT
PIN CODE - 577 213
...PETITIONER
(BY SRI.ANANDA V, ADVOCATE FOR
SRI.JAGADEESH MUNDARAGI, ADVOCATE)
AND:
Digitally
signed by 1. THE DEPUTY COMMISSIONER
CHAITHRA A
DAVANAGERE DISTRICT
Location:
HIGH KARNATAKA
COURT OF PIN CODE - 577 002
KARNATAKA
2. THE ASSISTANT COMMISSIONER
DAVANAGERE DISTRICT
KARNATAKA
PIN CODE - 577 002
3. SRI PHIR KHAN
S/O LATE SRI GOUSE KHAN
MAJOR
R/O NALLURU VILLAGE
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WP No. 42648 of 2018
CHANNAGIRI (T)
DAVANAGERE DIST
PIN CODE - 577 213
4. SRI MOHAMMED KHAN
S/O LATE SRI GOUSE KHAN
MAJOR
R/O NALLURU VILLAGE
CHANNAGIRI (T)
DAVANAGERE DIST
PIN CODE - 577 213
5. SRI HYDER KHAN
S/O LATE SRI GOUSE KHAN
MAJOR
R/O NALLURU VILLAGE
CHANNAGIRI (T)
DAVANGERE DIST
PIN CODE - 577 213
...RESPONDENTS
(BY SRI.VENKATA SATYANARAYANA, HCGP FOR R.1 AND R.2;
SRI.DIVYATEJ H.N. ADVOCATE FOR SRI.R.KOTHWAL, ADVOCATE
FOR R.3 TO R.5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER OF THE LEARNED DEPUTY COMMISSIONER,
DAVANAGERE DATED 18.7.2018 VIDE ANNEX-A ALLOW THE
PETITIONER'S APPLICATION AND ETC.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 42648 of 2018
ORDER
The captioned writ petition is filed by the grantee's son assailing the order of respondent No.1, who has reversed the order of restoration passed by respondent No.2 - Assistant Commissioner and consequently, petition seeking restoration is rejected by the Deputy Commissioner on the ground that there is inordinate delay of 48 years in seeking restoration of the granted lands. The said order is under challenge.
2. Before I advert to the facts of the present case, it would be useful to refer to the judgments rendered by the Apex Court on this issue in Nekkanti Rama Lakshmi vs. State of Karnataka and another1 and Vivek M. Hinduja vs. M. Aswatha2. It would be also useful to refer to the judgment rendered by a Co-Ordinate Bench of this Court in W.P.No.50446 of 2012, which was confirmed by the Division Bench in W.A.No.16/2021 disposed of on 05.04.2021.
1 (2020) 14 SCC 232 2 (2019) 1 Kant LJ 819 SC -4- NC: 2023:KHC:21501 WP No. 42648 of 2018
3. The Apex Court in the case of Nekkanti Rama Lakshmi, while interpreting Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (for short "PTCL Act") had an occasion to examine the point of limitation wherein interested person can file appropriate application seeking annulment of sale as void under Section 4 of the PTCL Act. The Apex Court by reiterating the principles laid down in Chhedi Lal Yadav vs. Hari Kishore Yadav3 and also in the case of Ningappa vs. Deputy Commissioner and others4 has held that where Statute did not prescribe the period of limitation, the provisions of the Statute must be invoked within a reasonable time. The Apex Court was of the view that the authorities have to give due regard to the period of time within which action has to be taken by the interested person. The Apex Court was of the view that it is well within the discretion of the competent authorities not to annul the alienations where there is 3 (2018) 12 SCC 527 4 (2020) 14 SCC 236 -5- NC: 2023:KHC:21501 WP No. 42648 of 2018 inordinate delay in initiating action by the interested persons under Sections 4 and 5 of the PTCL Act. The co- ordinate Bench of this Court in W.P.No.50446/2012 disposed of on 24.1.2020 declined to entertain the application filed by the original grantee where there was a delay of ten years. This Court was of the view that the application itself was not maintainable since the same was not filed within a reasonable time. While recording the finding, this Court relied on the judgment of the Apex Court in Ningappa vs. Deputy Commissioner and others, where the Apex Court had declined to entertain the application which was submitted after nine years seeking restoration of land under Sections 4 and 5 of the PTCL Act. The judgment rendered by a co-ordinate Bench of this Court in W.P.No.50446/2012 is affirmed by the Division Bench of this Court in W.A.No.16/2021.
4. Facts leading to the case are as under; The subject matter of the petition is an agricultural land bearing Sy. No.13/2, New Sy. No.148 measuring -6- NC: 2023:KHC:21501 WP No. 42648 of 2018 5 acres of Billahalli Village, Kasaba Hobli, Chennagiri Taluk. This said land was granted to one Halappa, who is the father of petitioner herein, with a condition of non-alienation of land for a period of 20 years vide order dated 24.02.1956. The original grantee Halappa sold petition land in favour of mother of respondent Nos.3 to 5 under registered sale deed dated 06.12.1962.
5. The petitioner herein sought for restoration of land, which was sold by his father by filing a petition under Sections 4 and 5 of 'PTCL Act'. The petitioner alleged that his father has alienated land in contravention of the provisions of 'PTCL Act'. Respondent No.2 - Assistant Commissioner entertained a petition and declared sale deed executed by petitioner's father as null and void and ordered for restoration.
6. Respondent Nos.3 to 5 preferred an appeal before respondent No.1 - Deputy Commissioner and has contended that original grantee has sought restoration in the year 1983-84 and therefore, present restoration -7- NC: 2023:KHC:21501 WP No. 42648 of 2018 petition is not maintainable. It is in this background, the petitioner claims that order of restoration passed in the earlier occasion was set-aside and matter was remitted back to respondent No.2 - Assistant Commissioner to hold a fresh enquiry.
7. Respondent No.2 - Assistant Commissioner, however, after remand by respondent No.1 - Deputy Commissioner, has again come to conclusion that alienation is in contravention of provisions of 'PTCL Act' and therefore, petitioner herein is entitled for restoration of granted land.
8. Respondent Nos.3 to 5 feeling aggrieved by the order passed by respondent No.2 - Assistant Commissioner preferred an appeal before respondent No.1
- Deputy Commissioner. Respondent No.1- Deputy Commissioner has examined records and has found that there is a delay of 48 years in seeking restoration and therefore, following law laid down by the Hon'ble Apex -8- NC: 2023:KHC:21501 WP No. 42648 of 2018 Court in the case of Nekkanti Rama Lakshmi vs. State of Karnataka and another has proceeded to reject the petition only on the ground of delay. The said order is under challenge.
9. Learned counsel appearing for the petitioner would vehemently argue and contend that respondent No.2 - Assistant Commissioner, after remand by respondent No.1 - Deputy Commissioner, has not conducted an enquiry to ascertain whether original grantee has suffered an order in the earlier round of litigation in the year 1992-93. By memo dated 21.06.2023, he has placed on record the order passed by respondent No.2 - Assistant Commissioner on 11.05.1982, wherein land is ordered to be restored in favour of original grantee - Halappa. There are no specific averments in the writ petition. It is also not forthcoming as to whether order passed by respondent No.2 - Assistant Commissioner on earlier petition filed by original grantee has attained -9- NC: 2023:KHC:21501 WP No. 42648 of 2018 finality. This Court has taken cognizance of the order, which is placed along with memo dated 21.06.2023.
10. Be that as it may, this Court is of the view that the grantee's right in seeking restoration depends upon nature of grant made in his favour. It is unfortunate that the Authorities, who are custodian of revenue proceedings, are passing orders in such a casual manner by entertaining petitions under the provisions of 'PTCL Act'. This is also one classic case, where Authorities have blindly invoked the jurisdiction conferred on them under the provisions of the 'PTCL Act'. What is more disturbing is that the Authorities have not even bothered to examine nature of grant under 'PTCL Act'. The Grant Certificate is placed on record by the grantees himself. On perusal of the grant, it is clearly evident that Halappa has participated in the public auction conducted by the State. The State having declared Halappa as the highest bidder has issued a grant certificate by issuing Form No.I.
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11. The controversy as to whether the document styled as Certificate of grant would automatically fall under the category of granted land for depressed classes is dealt by the Hon'ble Apex Court in the case of B.K.Muniraju vs. State of Karnataka5. The Hon'ble Apex Court, while dealing with the said controversy and upholding the judgment of the High Court, held that, mainly because a document is styled as a certificate of grant, that in itself will not lead to an inference that the grant was intended for a depressed class. The Hon'ble Apex Court in the case of B.K.Muniraju held as under:
"The document in question has been styled as "certificate of grant". In order to know the real nature of the document, one has to look into the recitals of the document and not the title of the document. The intention is to be gathered from recitals in the deed, conduct of the parties and evidence on record. It is settled law that question of construction of a document is to be decided by finding out intention of the executant, firstly, from a comprehensive reading of the terms of the document itself, and then, by looking into, to the extent 5 (2008) 4 SCC 451
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NC: 2023:KHC:21501 WP No. 42648 of 2018 permissible, the prevailing circumstances which persuaded the author of the document to execute it. With a view to ascertain the nature of a transaction, the document has to be read as a whole. A sentence or term used may not be determinative of real nature of transaction."
12. In the light of the findings recorded by the Hon'ble Apex Court cited supra, now let me examine the nature of grant. Admittedly, the Authorities have issued Form No.I though it is styled as Grant Certificate. It is a title document and therefore, it has to be treated as outright sale. Therefore, the provisions of PTCL Act are not at all applicable to the present case on hand. If land is granted in favour of depressed class, then the Authorities are bound to issue Form No.II and in such circumstances, the land has to be treated as granted land and if there is alienation of granted land, the consequences would follow under the provisions of PTCL Act provided an action is brought within reasonable period.
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13. Having referred to the materials on record, I am more than satisfied that subject mater of the petition land is not at all granted land. The petitioner by wrongly projecting it as granted land has virtually abused the process by invoking provisions of 'PTCL Act'. Assistant Commissioner erred in entertaining restoration petition. He was required to examine as to whether it is granted land or it is outright sale by the Authorities. By entertaining frivolous petition, the Authorities are passing frivolous orders, which is often leading to miscarriage of justice and valuable rights, which have stood crystallized by passage of time, are taken away by one criptic and non-speaking order passed by the Quasi Judicial Authorities. Therefore, on this count also, the writ petition is outrightly liable to be rejected.
14. Even if land is presumed to be a granted land, let me examine whether petitioner is entitled to seek restoration of land. The alienation by original grantee is
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NC: 2023:KHC:21501 WP No. 42648 of 2018 dated 06.12.1962. The petition is filed in the year 2009. Therefore, there is a delay of 48 years.
15. In the present case on hand, there is a delay of 48 years in initiating action. The respondent No.2 - Assistant Commissioner has not examined the delay and laches in moving the application. The judgments cited supra clearly indicates that on the ground of gross delay and laches, the application made by the grantee or by the legal heirs under Section 5(2) of the PTCL Act requires to be rejected. The Hon'ble Apex Court in the above cited judgment has held that where statute does not provide for limitation, the authorities and State must act consciously and if the process of invoking the provisions of statute is delayed and is initiated after long lapse of time, the delay by itself would act as an impediment. Thus, without exception and coming across various rules of law, the Apex Court has categorically stated the law in respect of exercise of power/jurisdiction under statute where no limitation is stipulated. The law on the point of delay and
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NC: 2023:KHC:21501 WP No. 42648 of 2018 laches to invoke the provisions of PTCL Act is well settled by catena of judgments.
16. In the light of the judgments cited supra and the law laid down by the Hon'ble Apex Court, even if the petition land for the sake of argument is treated as granted land, even then respondent No.2 - Assistant Commissioner had no jurisdiction to entertain a belated petition in the light of the law laid down by the Hon'ble Apex Court in the judgment cited supra. In the instant case, the diligence is woefully lacking. The contention of the learned counsel appearing for the petitioner for the first time that his father had benefit of the restoration order in the year 1982 is of no consequences. There are no averments, no pleadings and we are not examining the validity of the restoration order passed in the year 1981-
82. We are seized with a question, as to whether a fresh petition filed by the petitioner in 2009 could have been entertained by respondent No.2 - Assistant Commissioner. The order passed by respondent No.2 - Assistant
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NC: 2023:KHC:21501 WP No. 42648 of 2018 Commissioner is patently erroneous and suffers from serious perversity. The respondent No.2 - Assistant Commissioner has very casually and mechanically exercised jurisdiction and has entertained petition, which is filed after gross delay of 48 years. Respondent No.2 - Deputy Commissioner has rightly reversed the order. Respondent No.2 - Deputy Commissioner has followed the principles laid down by the Hon'ble Apex Court in the case of Nekkanti Rama Lakshmi vs. State of Karnataka and another (cited supra). The order of respondent No.1 - Deputy Commissioner is strictly in consonance with the principles laid down by the Hon'ble Apex Court in the judgments cited supra.
17. In view of discussion made supra, I proceed to pass the following:
ORDER
(i) The writ petition is devoid of merits and accordingly, stands dismissed.
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(ii) Pending applications, if any, are also disposed of.
Sd/-
JUDGE NBM List No.: 1 Sl No.: 2