Karnataka High Court
Sri Kaverappa vs State Of Karnataka on 20 February, 2020
Bench: Chief Justice, Hemant Chandangoudar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE HEMANT CHANDANGOUDAR
WRIT APPEAL No.141 OF 2020 (SC-ST)
BETWEEN:
SRI KAVERAPPA
S/O. LATE. NANJAPPA
AGED ABOUT 48 YEARS
OCC: AGRICULTURE
R/O SULIKUNTE VILLAGE
VARTHUR HOBLI
BENGALURU EAST TALUK
BENGALURU DISTRICT ...APPELLANT
(BY SRI SRINIVAS MANOHAR KULKARNI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
REVENUE DEPARTMENT
M.S BUILDING
VIDHANA SOUDHA
BENGALURU - 560 001.
2. THE DEPUTY COMMISSIONER
BENGALURU DISTRICT
BENGALURU - 560 001.
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3. THE ASSISTANT COMMISSIONER
BENGALURU NORTH SUB DIVISION
BENGALURU - 560 001.
4. Smt.NARAYANAMM
W/O MUNIYAPPA
AGED ABOUT 79 YEARS
OCC: AGRICULTURE & HOUSEHOLD
R/O SULIKUNTE VILLAGE
VARTHUR HOBLI
BANGALORE EAST TALUK
BANGALORE DISTRICT.
5. Sri MUNITHIMMAPPA
S/O LATE CHIKKA KAVERAPPA
AGED ABOUT 93 YEARS
OCC:AGRICULTURE
R/O SULIKUNTE VILLAGE
VARTHUR HOBLI
BANGALOR EAST TALUK
BANGALORE DISTRICT. ..RESPONDENTS
(BY SRI V. MANJUNATH, ADVOCATE FOR C/R5
SRI VIKRAM HUILGOL, HCGP FOR R1 TO R3)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO CALL FOR
RECORDS IN WP.Nos.8133-34/2012 (SC-ST) ON THE FILE
OF THIS HON'BLE COURT PERUSE THE SAME AND ALLOW
THIS APPEAL AND SET ASIDE THE ORDERS DATED:
14.12.2020 PASSED IN W.P.Nos.8133-34/2012 (SC/ST)
AND DISMISS THE WRIT PETITION AND ETC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
HEMANT CHANDANGOUDAR J DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is preferred against the order dated 14th January 2020 passed by the learned Single Judge in WP Nos.8133-34/2012.
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2. By order dated 27th December 1954, the land in Sy.No.22/10 measuring 2.00 acres situated at Sulikunte village, Bengaluru East Taluk, was granted in favour of Nanjappa under Land Grant Rules . Nanjappa belonged to schedule caste community. The said land was granted free of cost with a condition that the granted land will not be alienated for a period of twenty years. During his lifetime, Nanjappa sold 1.00 acre out of 2.00 acres of granted land in favour of husband of fourth respondent by executing a registered sale deed dated 17th July 1967 and the remaining land measuring 1.00 acre was sold in favour of the fifth respondent by a registered sale deed dated 1st May 1972.
3. Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short `PTCL Act') came into force from 1st day of January 1979. Section 4 of the PTCL Act provides for resumption and restitution of granted land. Section 5 provides for filing an application to be -4- made by an interested person to the Assistant Commissioner for restoration of granted land where the transfer of granted land was made either before or after commencement of this Act, in contravention of the terms of the grant of such land, the law providing for such grant, or sub-section (2) shall be null and void and no right, title or interest in such land shall be conveyed or be deemed ever to have conveyed by such transfer.
4. Even though the PTCL Act came to force with effect from 1st January 1979, the appellant filed an application on 4th January 2007 under Section 5 of the PTCL Act for restitution and restoration of the granted land on the ground that the transfer made by the deceased father of this appellant was in contravention of Section 4(1) of the PTCL Act. The third respondent - Assistant Commissioner rejected the application filed by the appellant on the ground of non-availability of original record and also that the appellant and the contesting respondent belong to -5- single family and as such, the PTCL Act did not apply to the transaction in question.
5. Being aggrieved , the appellant filed an appeal under Section 5A of the PTCL Act before the second respondent - Deputy Commissioner. The second respondent, after hearing the parties, set aside the order of the third respondent and further restored the granted land in favour of the appellant on the ground that the transfer made in favour of the husband of the fourth respondent and also the fifth respondent is hit by Section 4(1) of the PTCL Act.
6. Fourth and fifth respondents filed writ petitions before this Court challenging the order passed by the second respondent restoring the granted land in favour of the appellant. Learned Single Judge by a common order set aside the order passed by the second respondent on the ground that the application for restoration was not filed within a reasonable time and the same was filed after an inordinate delay of 26 -6- years following the law laid down by the Apex Court in Nekkanti Rama Lakshmi -vs- State of Karnataka and another1and Chhedi Lal Yadav and others - vs- Hari Kishore Yadav (D) Thr. Lrs and others2.
7. Assailing the correctness of the order passed by the learned Single Judge, this appeal has been preferred.
8. The learned counsel appearing for the appellant submits that the issue regarding filing an application within a reasonable time was not raised either before the Authorities or in the memorandum of writ petition filed by the fourth and fifth respondents and the same was raised for the first time during the course of argument. Hence, there was no occasion for the appellant to explain the delay in filing the application for restoration. He further submitted that the learned Single Judge should have afforded an opportunity to the appellant by remitting the matter to 1 2018 (1) Kar.L.R 5 (SC) 2 [2018 (1) Kar.L.R 1 (SC)] -7- the third respondent for reconsideration so as to enable him to explain the delay for not having filed an application within reasonable time. He submitted that the learned Single Judge has erred in disallowing the claim of the appellant for restoration of granted land on the ground that the application is not filed within reasonable time without giving an opportunity to the appellant to suitably explain the delay. Accordingly, he sought for allowing the appeal.
9. Learned counsel appearing for the caveator
- fifth respondent justified the order passed by the learned Single Judge and sought for dismissal of the writ appeal.
10. We have examined the submissions made by the learned counsel and also perused the material on record.
11. Admittedly , the land in question was granted in favour of father of appellant on 27th December 1954 and during his lifetime, he transferred -8- the granted land in favour of father of the fourth respondent and in favour of the fifth respondent by executing registered sale deeds in 1967 and 1972 respectively. The PTCL Act came in force on 1st January 1979. Appellant did not choose to file an application under Section 5 of the PTCL Act within a reasonable time after commencement of the PTCL Act. Appellant filed an application in 2007 for restitution and restoration of granted land with the third respondent. In the said application, he has not explained the delay for having filed the application after lapse of 26 years from the date of commencement of the PTCL Act. Even in the writ proceedings before the learned Single Judge, the appellant has not explained the delay in filing the application in the statement of objections or by filing additional statement of objections or by way of an affidavit. The learned Single Judge passed the impugned order on 14th January 2020 following the judgment passed in the case of Nekkanti Rama -9- Lakshmi (supra). The appellant had every opportunity to explain the delay since the law laid down by the Apex Court in the case of Nekkanti Rama Lakshmi (supra) was rendered on 26th October 2017. Appellant having not chosen to explain the delay either before the Authority or before the learned Single Judge cannot have any grievance that there was no occasion for him to explain the delay . Further submission of the learned counsel for appellant that the fourth and fifth respondents having not raised the plea regarding limitation in the memorandum of writ petition could not have raised the same during course of argument is without any substance, since the question of limitation can be raised at any point of time provided there is a material available to deal with the question. In this case, it was strictly not a question of limitation. The question was whether the application was filed within a reasonable time which could have been decided on the basis of the pleadings in the application for restoration.
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12. Submission of the learned counsel appearing for the appellant that the matter requires to be remitted to the learned Single Judge or with the third respondent so as to enable the appellant to explain the delay in filing the application for restoration cannot be accepted for the reason that there cannot be any explanation for the inordinate delay of 26 years in filing an application for restoration of granted land and there is no warrant to exercise of such power of condoning the delay and as such, no purpose will be served by remitting the matter.
13. Appellant having failed to file an application for restoration within a reasonable time is not entitled for restoration and the learned Single Judge has rightly set aside the order passed by the second respondent restoring the granted land in favour of the appellant.
14. Having regard to the law laid down by the Apex Court that the grantees are not entitled for
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restoration of land, if an application for restoration is not filed within a reasonable time from the date of commencement of PTCL Act, we are of the view that the impugned order passed by the learned Single Judge does not suffer from any illegalities or perversity.
Under these circumstances, we do not find any good ground to interfere with the order passed by the learned Single Judge. Accordingly, the writ appeals are dismissed.
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CHIEF JUSTICE Sd/-
JUDGE bkm