Karnataka High Court
Sri. T. Narayana vs The State Of Karnataka on 12 April, 2022
Bench: Alok Aradhe, S Vishwajith Shetty
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF APRIL, 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
W.A.No.300/2021
BETWEEN:
SRI. T. NARAYANA
S/O LATE THAMMAIAH,
AGED ABOUT 61 YEARS,
R/AT KARIYAMMANA AGRAHARA VILLAGE,
BELLANDUR POST,
VARTHUR HOBLI,
BANGALORE EAST TALUK-560103. ... APPELLANT
(By Sri Ramachandra Ganapati Bhat, Adv.)
AND:
1. THE STATE OF KARNATAKA
THE DEPARTMENT OF LAND REVENUE,
VIDHANA SOUDHA,
BANGALORE 560 001,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
REVENUE DEPARTMENT,
BANGALORE-01.
2. THE DEPUTY COMMISSIONER
BANGALORE DISTRICT,
DEPUTY COMMISSIONER'S OFFICE BUILIDNGS,
K. G. ROAD, BANGALORE 560009.
3. THE ASSISTANT COMMISSIONER
BANGALORE NORTH SUB-DIVISION,
2ND FLOOR, DEPUTY COMMISSIONER'S
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OFFICE BUILDING,
K.G.ROAD, BANGALORE 560 009.
4. SMT. MUNIYAMMA
W/O YELLAPPA @ CHINNAPPA,
AGED ABOUT 75 YEARS,
R/AT YEMALUR VILLAGE AND POST,
VARTHUR HOBLI,
BANGALORE EAST TALUK - 560 103.
5. SRI V.R. RADHA KRISHNA
S/O V. RAMAIAH,
AGED ABOUT 55 YEARS,
R/AT NO.487, 37TH CROSS,
9TH MAIN, JAYANAGAR,
4TH BLOCK, BANGALORE 560 011.
6. M/S. M.S.RAMAIAH DEVELOPERS
AND BUILDERS PVT. LTD. ,
HAVING IT'S OFFICE AT NO.4, 1ST FLOOR,
UNITY BUILDING, J.C.ROAD,
BANGALORE-02,
REP. BY ITS MANAGING,
DIRECTOR SRI M.R.SITHARAM. ... RESPONDENTS
(By Smt. Vani. H., AGA for R1;
Sri Aditya Sondhi, Sr. Counsel for
Sri B.Prasad, Adv. for R4;
Notice not ordered in R/o R2, R3, R5 & R6)
This writ appeal is filed under Section 4 of the
Karnataka High Court Act praying to set aside the order dated
28.01.2021 passed in W.P. No.24484/2021 (SC and ST) and
to allow the writ petition and consequently to quash the order
dated 5.7.2012 passed by the Second Respondent vide
Annexure-K as well as the order dated 15.07.2011 passed in
K.SC.ST.19/10-11 passed by the third respondent herein vide
Annexure-J to the writ petition.
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This appeal coming on for Preliminary Hearing, this day,
Vishwajith Shetty J., delivered the following:
JUDGMENT
1. The unsuccessful petitioner has preferred this intra court appeal challenging the order dated 28.01.2021 passed by the learned Single Judge of this Court in W.P.No.24484/2012.
2. The parties are referred to by the rank assigned to them in the writ petition.
3. Brief facts of the case relevant for the purpose of disposal of this appeal are, land bearing Sy. No.14 measuring 30 guntas situated at Kadibisanahalli village, Varthur Hobli, Bengaluru East Taluk, was allegedly granted in favour of respondent no.4 under a grant order dated 13.08.1953. Respondent no.4, thereafter, sold a portion of the land measuring 15 guntas in favour of the petitioner herein under a registered sale deed dated 13.12.1996 for a valid sale consideration. Subsequently, in the year 2007, respondent no.4 filed an application under Section 5 of the Karnataka 4 Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, 'PTCL Act'), for restoration of the land which was the subject matter of the sale deed dated 13.12.1996 on the ground that the said sale was hit by Section 4(2) of the PTCL Act, which provides that the land granted in favour of persons belonging to scheduled caste/scheduled tribe shall not be transferred without prior permission of the State Government. The said application was considered by the Assistant Commissioner and vide order dated 15.07.2011, the Assistant Commissioner allowed the application filed by respondent no.4 seeking restoration and the appeal filed by the petitioner before the Deputy Commissioner against the said order was dismissed by order dated 05.07.2012, and therefore, the petitioner had preferred W.P.No.24484/2012 and the learned Single Judge of this Court vide the impugned order dated 28.01.2021 has dismissed the said writ petition. It is under these circumstances, this intra court appeal is filed by the petitioner.
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4. Learned Counsel for the petitioner submits that the application under Section 5 of the PTCL Act has been filed after a lapse of 11 years, and therefore, the said application ought to have been rejected by the competent authorities on the ground that the same was filed beyond a reasonable period. In support of this contention of his, he has relied upon the decisions of the Hon'ble Supreme Court in the case of NEKKANTI RAMA LAKSHMI VS STATE OF KARNATAKA & ANOTHER - (2020)14 SCC 232, VIVEK M.HINDUJA VS M.ASWATHA - (2019)1 Kant LJ 819 SC, and NINGAPPA VS DEPUTY COMMISSIONER & OTHERS - (2020)14 SCC 236. He submits that respondent no.4 had voluntarily and out of her free will and volition, had executed the sale deed in the year 1996 in favour of the petitioner after receiving valid sale consideration and subsequently in the year 2007, she has filed the application for restoration which was definitely beyond the reasonable period. He submits that the learned Single Judge was not justified in dismissing the writ petition placing reliance on the decision of the Hon'ble Supreme Court in the case of SATYAN VS DEPUTY COMMISSIONER & 6 OTHERS - (2020)14 SCC 210. He, therefore, prays to allow the appeal.
5. Per contra, learned Senior Counsel for respondent no.4 submits that the delay caused in filing the application for restoration is only 6 years and not 11 years. He submits that respondent no.4 was prosecuting the litigation in the RRT proceedings and it is only after it was held that the grant made in favour of respondent no.4 was genuine in the said RRT proceedings, she had filed the application seeking restoration. He has placed reliance on the judgment of the Hon'ble Supreme Court in Satyan's case supra, and submits that in the said case, the Supreme Court has held that the application filed after a lapse of 8 years cannot be said to be beyond a reasonable period, and therefore, the said judgment would be squarely applicable to the present case. He has also placed reliance on the judgments delivered by the coordinate bench of this Court in W.A.No.100893/2015 (Smt. Kavitha Vs Deputy Commissioner & Others) disposed of on 02.07.2020 and in W.A.No.82/2020 (G.Nagaraju Vs Deputy Commissioner & Others) disposed of on 16.03.2021. He submits that the 7 sale in the present case is subsequent to the PTCL Act coming into force, and therefore, the sale is void ab initio since there was no prior permission from the Government, and therefore, the delay cannot come in the way of the concerned authorities giving relief to the applicant under the PTCL Act, which is a beneficial legislation. He accordingly prays to dismiss the appeal.
6. We have carefully considered the rival contentions and also perused the material available on record.
7. The undisputed facts of this case are, the sale deed in respect of the land in question was executed by respondent no.4 on 13.12.1996 and the application for restoration has been filed under Section 5 of the PTCL Act only in the year 2007, which was after a lapse of 11 years from the date of sale.
8. The Hon'ble Supreme Court in the case of Nekkanti Rama Lakshmi's case supra while reiterating the law laid down earlier in the case of CHHEDI LAL YADAV VS HARI KISHORE YADAV - (2081)12 SCC 527 has observed that 8 where the Statute do not prescribe the period of limitation, the provisions of the Statute must be invoked within a reasonable time. The Hon'ble Supreme Court has stated that though Section 5 of the Act does not prescribe any period within which such an application can be made, held that action under Section 5 of the Act whether on an application or suo motu, must be taken within a reasonable time. The Hon'ble Supreme Court had over-ruled the judgment of this court in the case of R.RUDRAPPA VS. DEPUTY COMMISSIONER - 2000(1) KLJ 523 wherein it was held that there is no limitation provided for filing an application under Section 5 of the Act. The same principle was reiterated by the Hon'ble Supreme Court in the case of Vivek M.Hinduja's case supra and the Hon'ble Supreme Court has said that, where limitation is not prescribed, the party ought to have approached the competent Court or authority within reasonable time, beyond which no relief can be granted.
9. The Hon'ble Supreme Court in the case of Ningappa's case supra wherein an application was filed for restoration after 9 years from the date of the Act coming into force has 9 held that the said application was filed beyond a reasonable period. The Hon'ble Supreme Court in the said case had also observed that the sale of the land in question was voluntary and of their own free volition and therefore, the application filed for cancellation of such a sale transaction and restoration of the lands which was the subject matter of the sale, filed beyond a considerable delay was not maintainable. In the said case, the Hon'ble Supreme Court has also observed that even if no limitation is prescribed by the Statute, all acts have to be done within a reasonable period of time.
10. Learned Senior Counsel appearing for respondent no.4 has placed reliance on the judgment of the Supreme Court in Satyan's case supra and contends that the application filed under Section 5 of the PTCL Act cannot be said to be beyond a reasonable period in the present case. In Satyan's case supra, the Hon'ble Supreme Court was considering the question whether the sale made after the PTCL Act coming into force in respect of the granted land, of which the non- alienation period had expired without obtaining prior permission from the Government was hit by Section 4(2) of 10 the PTCL Act. In the said case, the Hon'ble Supreme Court has held that in respect of the granted land, even if the non- alienation period has expired, after coming into force of the PTCL Act, prior permission under Section 4(2) of the PTCL Act is mandatory and all transactions in violation of the same, would be null and void in view of Section 4(1) of the PTCL Act. In the said case, it was found that the alleged permission obtained from the competent authority for sale of the land was forged and fabricated document. It is in this background, the Hon'ble Supreme Court has held that the delay of 8 years cannot be said to be such, as to amount to such delay and latches as would make the action void under Section 5 of the Act.
11. In Ningappa's case supra, the Hon'ble Supreme Court has held that the application filed after a period of 9 years seeking restoration was beyond a reasonable period. A coordinate bench of this Court in W.A.No.16/2021 placing reliance on Ningappa's case supra and Nekkanti Rama Lakshmi's case supra, has held that the application filed 11 seeking restoration after a lapse of 10 years was beyond a reasonable period.
12. Though the learned Senior Counsel for respondent no.4 has sought to contend that the application under Section 5 of the PTCL Act is not filed after a lapse of 11 years but it is filed after a lapse of 6 years, we are not in agreement with the said submission for the reason that the RRT proceedings were initiated in the year 2003-04 on the report of the Tahsildar that certain persons had indulged in land grabbing in Sy. No.14 which totally measured 14 acres 36 guntas and grantees had no document in support of their case. Further, the RRT proceedings would not have come in the way of respondent no.4 filing an application for restoration under Section 5 of the Act, since, admittedly, the alleged grant made in favour of respondent no.4 was not cancelled at any point of time. The application under Section 5 of the Act was admittedly filed in the year 2007. Under the circumstances, we hold that the application for restoration has been filed after a lapse of 11 years from the date of the sale and having regard to the judgment of the Hon'ble Supreme Court in 12 Nekkanti Rama Lakshmi's case, Vivek Hinduja's case, and in view of Ningappa's case supra, wherein the delay in filing the application for restoration was 9 years, we are of the considered view that the application filed in the case on hand after a lapse of 11 years was definitely beyond a reasonable period, and therefore, the learned Single Judge was not justified in holding that the said delay cannot be considered as inordinate or that the application filed by respondent no.4 under Section 5 of the PTCL Act was not beyond a reasonable period.
13. In Kavitha's case supra, the alleged sale was in the year 1999 and the action was taken for restoration of the revenue entries in the year 2005 itself, and therefore, the delay in the said case was only 6 years. In G.Nagaraju's case supra, the sale was in the year 1994 and the application for restoration made under Section 5 of the Act was filed in the year 1997. Therefore, the delay caused in filing the application was only 3 years. It is under these circumstances, the coordinate bench of this Court relying upon the judgment of the Hon'ble Supreme Court in Satyan's case supra, has 13 held that the application under Section 5 of the PTCL Act, cannot be said to have been filed beyond a reasonable period. Under the circumstances, we are of the considered view that the learned Single Judge was not justified in holding that the application filed under Section 5 of the PTCL Act in the present case cannot be considered to be filed beyond a reasonable period.
14. The contention of the learned counsel for the petitioners that since the sale deeds have been executed subsequent to the Act coming into force and in view of Section 4(2) of the Act, the sale in question is null and void and therefore, the applications filed under Section 5 of the Act cannot be dismissed on the ground of delay, is liable to be rejected for the simple reason that Section 4(1) of the Act provides that any transfer of the granted land either before or after commencement of the Act in contravention of the terms of the grant order or the law providing for such grant or in contravention of sub-section (2) of Section 4 of the Act shall be null and void and no right, title or interest in such land shall be conveyed or deemed to have been conveyed by such 14 transfer. However, there is no automatic restitution of the granted land even if the sale is either hit by Section 4(1) or Section 4(2) of the Act and on the other hand, under Section 5 of the Act, the Assistant Commissioner is granted powers for the resumption and restitution of the granted lands, if he is satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4 of the Act. The action under Section 5 of the Act could be on an application filed by an interested person or on information given in writing by any person or suo motu.
15. In the case on hand, an action has been taken by the Assistant Commissioner on the application filed by the petitioners after a lapse of 11 years from the sale. Since the power for resumption and restitution is vested upon the Assistant Commissioner, all acts and actions under Section 5 of the Act are required to be undertaken by the Assistant Commissioner within a reasonable period. The question whether the sale of the granted land was prior to the date of Act coming into force or after Act coming into force makes no difference for the purpose of exercise of power by the 15 Assistant Commissioner under Section 5 of the Act. Therefore, we find no merit in the contention urged by the learned counsel for the petitioners that since the sale in question has taken place subsequent to the Act coming into force, the question of delay does not arise, as the sale itself is null and void. For the purpose of Section 4(1) of the Act, all transactions in contravention of the terms of the grant order and the law providing for such grant or in contravention of sub-section (2) of Section 4 are null and void.
16. The Assistant Commissioner exercising his powers under Section 5 of the Act, if he is satisfied that the transfer of any granted land is null and void under sub-Section (1) of Section 4 of the Act may restore possession of the granted land in favour of the original grantee or his legal heirs provided the application under Section 5 of the Act is filed or any suo motu action is taken, within the reasonable period.
17. It is not the case of respondent no.4 that she had entered into transaction against her will or under coercion or undue influence. The Hon'ble Supreme Court in Ningappa's case supra, has held that where the parties have entered into 16 transactions voluntarily and out of their own free volition, the application filed for restoration after 9 years was beyond reasonable period. Therefore, in the present case, where an application is filed after a period of 11 years, it is definitely required to be considered as an application filed beyond reasonable period. Under the circumstances, the impugned order passed by the learned Single Judge cannot be sustained and the same is liable to be set aside. Accordingly, we pass the following order:
Writ appeal is allowed. The order dated 28.01.2021 passed by the learned Single Judge of this Court in W.P.No.24484/2012 is set aside. Consequently, the writ petition is allowed. The order dated 15.07.2011 passed by the Assistant Commissioner and the order dated 05.07.2012 passed by the Deputy Commissioner are quashed.
Sd/-
JUDGE Sd/-
JUDGE KK