Karnataka High Court
Sheik Hyder vs Muniraju on 10 October, 2018
Equivalent citations: AIRONLINE 2018 KAR 1205
1/14
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 10th DAY OF OCTOBER 2018
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.38966/2011 (SC-ST)
BETWEEN:
Sheik Hyder
Aged about 65 years
S/o Ibrahim Sab
Resident of Hosapete
Anekal Town
Bangalore Urban District.
...Petitioner
(By Mr. V. Srinivas, Advocate)
AND:
1. Muniraju
Aged about 50 years
S/o late Gullojappa
Resident of Bodarahalli Village
Kasaba Hobli, Anekal Taluk
Bangalore Urban District.
2. The Assistant Commissioner
Bangalore South Sub-Division
K.G. Road, Bangalore-560009.
3. The Special Deputy Commissioner
Bangalore Urban District
K.G. Road, Bangalore-560009.
...Respondents
(By Ms. Gowhar Unnisa, Advocate for R1
Ms. Savithramma, HCGP for R2 & R3)
Date of Order 10-10-2018 W.P.No.38966/2011
Sheik Hyder Vs. Muniraju & Ors.
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This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India praying to issue a writ of certiorari
or any other writ or order/direction of similar nature
quashing the order dated 26-08-2011 passed in Case No. SC
ST 61/2007-08 by the 3rd Respondent at Annexure 'A' & etc.
This Writ Petition coming on for preliminary hearing in
'B' group this day, the Court made the following:-
ORDER
Mr. V. Srinivas, Adv. for Petitioner Ms. Gowhar Unnisa, Adv. for R1 Ms. Savithramma, HCGP for R2 & R3 The petitioner - Sheik Hyder, the purchaser of the land in question belonging to non-SC/ST category has challenged the impugned Order passed by the Special Deputy Commissioner, Bangalore Urban District, Bangalore on 26/08/2011 in SC/ST (Appeal)No.61/2007-08 [Sri. Muniraju Vs. The Assistant Commissioner, Bangalore South Sub- Division, Bangalore and Sri. Sheik Hyder), allowing the Appeal filed by the Grantee and setting aside the sale in favour of the present petitioner - Sheik Hyder by his Order dated 26/08/2011, though the Assistant Commissioner had rejected such Application vide Date of Order 10-10-2018 W.P.No.38966/2011 Sheik Hyder Vs. Muniraju & Ors.
3/14 earlier Order dated 20/07/2007 in No.K SC.ST.99/2006-07.
2. The sale made in favour of the present petitioner was on 03/10/1985 and the challenge to the said sale was laid by the Grantee belonging to SC/ST category, for the first time on 26/10/2006 after about 21 years of the sale. The Assistant Commissioner dismissed the Application of the Grantee on 20/07/2007, however on an Appeal, the Special Deputy Commissioner has allowed the Appeal on 26/08/2011 and set aside the sale.
3. The reasons given by the Special Deputy Commissioner in the impugned Order dated 26/08/2011 is quoted below for ready reference.
"Point No.1: Here the contention of appellant is that Sy No.509/1 measuring 2 acres of Anekal Village, Anekal Taluk has been granted in favour of his grand father A.K. Muniga free of cost of the same land has Date of Order 10-10-2018 W.P.No.38966/2011 Sheik Hyder Vs. Muniraju & Ors.4/14
been phoded and its new Sy No.593 and its boundaries have fixed to an extent of 2 acres 3 guntas in favour of his grand father. The said land has been alienated by some of the heirs of deceased A.K. Muniga in favour of 2nd Respondent through registered sale deed dated 3-10-1985. The alienation was after coming in to force of Amended Act. Hence the alienation in favour of 2nd Respondent is clear violation of grant rules as no permission was taken before alienation of the land. On the other hand the contention of 2nd Respondent is that Sy No.509/1 measuring 2 acres was granted in favour of the grantee. But not Sy No.593 measuring 2 acres 3 guntas of Anekal Village. 2nd Respondent also denied that the heirs of A.K. Muniga alienated the land in favour of 2nd Respondent. Hence he denied the alienation is clear violation of grant rules. He also denied that the land has been granted free of cost to A.K. Muniga. In view of this contention of Respondent it appears that according to his contention the land granted to grantee is Sy No.509/1 measuring 2 acres and that land purchased by 2nd Respondent Date of Order 10-10-2018 W.P.No.38966/2011 Sheik Hyder Vs. Muniraju & Ors.5/14
is Sy. No.593 measuring 2 acres 3 guntas and vendors of Sy No.593 are not the heirs of A.K. Muniga. The learned Assistant Commissioner is also considering these facts rejected the application of appellant. It is pertinent to note that appellant produced genealogical tree of A.K. Muniga. He also produced Saguvali Chit issued register extract, RTC extract, caste certificate of appellant and Phodi register extract and copy of the sale deed. Looking to these documents it is clear that Sonnappa, Golojappa, Badrappa and Papanna are the sons of A.K. Muniga. The present appellant Muniraju is son of Golojappa. In the sale deed executed in favour of Respondent No.2 Sonnappa. Golojappa, Badrappa and Papanna are the vendors. Their father's name is mentioned in the sale deed as Muniyappa instead of A.K. Muniga. Because of the difference mentioned in the sale deed of father's name of vendors it cannot be said that A.K. Muniga and Muniyappa are different persons. 2nd Respondent has also not produced any material to show that A.K. Muniga and Date of Order 10-10-2018 W.P.No.38966/2011 Sheik Hyder Vs. Muniraju & Ors.6/14
Muiniyappa are different persons. In the villages there is possibility of calling Muniga as Muniyappa. A person may be called by both the names. Some may call him as Muniga and some others may call him as Muniyappa. 2nd Respondent has also not produced any material to show that there was one Muniyappa in the village and his sons were also having the names of all the 4 vendors. Under the circumstances the contention of the appellant that A.K. Muniga is his grand father has to be accepted and he is also called as Muniyappa as also to be accepted.
As regarding extent of the land of course looking to Saguvali Chit issued register extract, it is clear that Sy No.509/1 measuring 2 acres was granted to A.K. Muniga. It is the specific contention of the appellant that when the granted land was phoded it was renumbered as Sy No.593 and its boundaries fixed to an extent of 2 acres 3 guntas. Due to this little deference in the extent it cannot be said that the land granted to A.K. Muniga is different from the land Date of Order 10-10-2018 W.P.No.38966/2011 Sheik Hyder Vs. Muniraju & Ors.7/14
alienated in favour of 2nd Respondent. Appellant also produced his caste certificate in form - D issued by Tahsildar. Anekal Taluk according to which appellant Muniraju is belonging to Aadi Karnataka Caste i.e., depressed class. As the said land is granted to a depressed class person i.e., grand father of the appellant and uncles of the petitioner and petitioner's father alienated the land in favour of 2nd respondent without taking permission from the government. It amounts to violation of the provisions of the Act. Hence the learned Assistant Commissioner is not justified in rejecting the application of the appellant. Hence I answer this point in Negative.
ORDER In the result appeal is allowed. The impugned order of the Assistant Commissioner in No. K SC ST 99/2006-07 dated 20-07-2007 is set aside. Sy. No.593 measuring 2 acres 3 guntas of Anekal Village. Anekal Taluk is resumed to government, Tahasildar, Anekal Taluk, is directed to restore the same to grantee or his heirs.
Date of Order 10-10-2018 W.P.No.38966/2011 Sheik Hyder Vs. Muniraju & Ors.8/14
Endorse the parties.
Order pronounced in the open Court on this the 26th day of August 2011 (G.S. Naik) Special Deputy Commissioner Bangalore Urban District Bangalore."
4. The controversy involved in the present case is no longer res integra. It is covered by the decision of the Hon'ble Apex Court in the case of Vivek M. Hinduja and others Vs. M. Ashwatha and others dated 06/12/2017 in Civil Appeal No.2166/2009.
5. The relevant portion of the said judgment of the Apex Court dated 06/12/2017 is quoted below for ready reference:-
" 4. Arguments have been addressed before us at length on whether the present appellants had perfected their titles on the date of the coming into force of the Karnataka Act. We are not inclined to go into this question because the instant matters can be Date of Order 10-10-2018 W.P.No.38966/2011 Sheik Hyder Vs. Muniraju & Ors.9/14
decided on an aspect settled by this Court in the case of Chhedi Lal Yadav and Ors. vs. Hari Kishore Yadav (D) Thr. Lrs. and Ors., and Nekkanti Rama Lakshmi vs. State of Karnataka and Anr. In these two decisions, one of which arose under the Karnataka Act, this Court has held that the authorities entrusted with the power to annul proceedings purported to have been made by the original grantees, must exercise their powers to do so, whether on an application, or suo motu, within a reasonable time since no time is prescribed by law for taking such action. In the decided cases, action had been initiated after about 20 to 25 years of the coming into force of the Karnataka Act.
5. In the present cases, it is undisputed that the action had been initiated after almost 20 years from the coming into force of the Karnataka Act. In principle, we do not see any reason why the delay in the present cases should be considered to be reasonable. There is no material difference between the Date of Order 10-10-2018 W.P.No.38966/2011 Sheik Hyder Vs. Muniraju & Ors.10/14
period of delay in the present cases and he decided cases.
6. Relying on some observations in the case of Manchegowda and Ors. vs. State of Karnataka and Ors. and Sunkara Rajayalakshmi & Ors. vs. State of Karnataka, Shri Sunil Fernandes, learned counsel on the respondents' side submitted that the outer limit for initiating action should be 30 years.
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 4 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 Date of Order 10-10-2018 W.P.No.38966/2011 Sheik Hyder Vs. Muniraju & Ors.
11/14 case of Board of Trustees of Port of Kandla vs. Hargovind Jasraj and Anr, 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 Vs. East Elloe Rural District Council which reads as under:
"...An order, even if not made in good faith, is still an act capable of legal 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 Date of Order 10-10-2018 W.P.No.38966/2011 Sheik Hyder Vs. Muniraju & Ors.12/14
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."
In the case of Pune Municipal Corporation vs. State of Maharashtra, this Court reproduced the following observation 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 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] Date of Order 10-10-2018 W.P.No.38966/2011 Sheik Hyder Vs. Muniraju & Ors.13/14
10. 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.
11. 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.
12. Accordingly, the appeals are allowed."
6. In view of the aforesaid binding legal precedent, the present writ petition deserves to succeed and the Date of Order 10-10-2018 W.P.No.38966/2011 Sheik Hyder Vs. Muniraju & Ors.
14/14 impugned Order passed by the Deputy commissioner on 26/08/2011 cannot be sustained.
7. The Writ petition is accordingly allowed and the impugned Order Annexure A dated 26/08/2011 passed by the Special Deputy Commissioner is quashed and set aside. No order as to costs.
Sd/-
JUDGE BMV*