Karnataka High Court
M. Vijaykrishna vs Deputy Commissioner on 15 December, 2018
Author: G.Narendar
Bench: G. Narendar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE G. NARENDAR
WRIT PETITION Nos. 56810-56812/2017 (SC-ST)
BETWEEN:
M. Vijaykrishna
S/o H. Mahadev
Aged about 33 years
R/at Oordigere Cross
Hanumanthapura
Koratagere Town-572129
Tumakuru District. ...Petitioner
(By Sri S.K. Venkata Reddy, Advocate)
AND:
1. Deputy Commissioner
Tumakuru District
Tumakuru-572 101.
2. Asst. Commisisoner
Madhugiri Sub Division
Madhugiri, Tuamkuru Dist.-572132.
3. Nagaraju A.V.
S/o Veerakyathayya
Aged about 31 years
R/at Jatti Agrahara
C.N. Durga Hobli
Koratagere Taluk
Tumakuru Dist-572129.
4. Thimmaiah
S/o Late Rajanna
(Wrongly mentioned as
Ranganna in the order of
2
DC)
Aged about 65 years
R/at Jampenahalli
Jatti Agrahara Post
Koratagere Taluk
Tumakuru Dist-572129. ...Respondents
(By Sri B.K. Manohar, Advocate for R3
Smt. Savithramma, HCGP for R1 & R2
R4 served.)
These writ petitions are filed under Articles 226
and 227 of the Constitution of India praying to quash the
endorsement/order dated 11.10.2014 passed by R-4 vide
Annexure-V and etc.
These writ petitions coming on for 'Further
Hearing' this day, the Court made the following:-
ORDER
Heard learned counsel for the petitioner and the learned HCGP.
2. There is no dispute to the fact that the land was granted in the year 1935 and the sale deed was executed by the husband of the grantee on 24.06.1960 in favour of one Rajanna. By registered sale deed dated 05.10.2009, the said Rajanna along with other members of his family sold the land in favour of the petitioner for valuable and valid consideration under a registered sale deed and possession was also delivered to the 3 petitioner. On 07.10.2014, respondent No.3 preferred an application before the respondent No.2 with a prayer to void the sale effected in favour of the petitioner on the premise that the grant in favour of his great grandmother is a free grant and grantee belonged to the depressed class and sale is in violation of provisions of sections 4 and 5 of Karnataka SC & ST (PTCL) Act, 1978 and thereby prayed for resumption of the land in his favour, being the legal heir of the original grantee.
3. The respondent No.1 registered the case bearing No. PTCL- SR: 10/2014-15 and by order dated 14.4.2017 was pleased to allow the application and further by proceedings of May 2017 was pleased to allow the application and order for resumption of the land. Petitioner preferred an appeal in June 2017 before the respondent No.1 which came to be registered as case bearing No. PTCL-
02/2017-18 and the respondent No.1 by order dated 08.12.2017 was pleased to reject the appeal and affirm the order of the respondent No.2 whereby the sale in favour of the petitioner came to be void. It is contended by the 4 learned counsel for petitioner that the impugned orders being contrary to the law laid down by the Hon'ble Apex Court in Nekkanti Rama Lakshmi's case, the same requires to be set aside. He further contends that the impugned orders are liable to be quashed as the application for resumption and voiding the sale is made after a passage of nearly more than 45 years. The respondent No.3 has not been diligent in either asserting or executing his rights and hence, the impugned orders at Annexure-'A' and 'B' requires to be interferred with.
4. Per contra, learned counsel for respondent No.3 would contend that pursuant to the order of the respondent No.2, a mahazar was drawn and the possession was handed over in May 2017 as per Annexure R10 and R11. He would further contend that in view of the fact that possession of the land had already been handed over to the petitioner, writ petition be observed as infructuous. The said contention is misconceived. The possession is handed over pursuant to the order by the statutory Authorities in lieu of their 5 order made as in discharge of their quasi-judicial functions. It is not in dispute that it is these orders which are the subject matter of these writ petitions.
5. He would further contend that law laid down by the Hon'ble Apex court is after the orders passed by the respondent No.2 and in that view of the matter, law laid down by the Apex Court is inapplicable to the facts of the case and the order of the respondent No.2 cannot be interfered with. The said contention is highly misconceived.
6. It is also contended that the Hon'ble Apex Court while laying down the law has not laid down the law as to what is the reasonable time. That the said judgment is bad because it does not detail the limitation and hence the same is not binding fact and cannot be considered as precedent. The said contention is liable to be rejected at the threshold. In the said case, the Hon'ble Apex Court was dealing with the another case involving similar circumstances wherein the legal representatives of the original grantee had approached 6 the authorities by way of an application under the Section of 4 and 5 of Karnataka SC & ST (PTCL) Act, 1978 after a delay of 20 years. The delay of 20 years itself indicates that the application is not within the reasonable time. It was unreasonable on the part of authorities who have considered the application.
7. This Court while considering a similar case in W.P.No30614/2015 vide order dated 4.6.2018 was pleased to hold as follows:
"5. Learned counsel for the petitioner places reliance on the ruling of the Apex Court rendered in the case of 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. However, the question that arises is with regard to terms of Section 5 of the Act which enables any interested person to make an application for having the transfer annulled as void under Section 4 of the Act. This Section does not prescribe any 7 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 Statute provided for a period of limitation, provisions of the Statute must be invoked within a reasonable time. It is held that action whether on an application of the parties, or suo motu, must be taken within a reasonable time. That action arose under the provisions of a similar Act which provided for restoration of certain lands to farmers which were sold for arrears of rent or from which they were ejected for arrears of land from 1st January, 1939 to 31st December, 1950. This relief was granted to the farmers due to flood in the Kosi River which make agricultural operations impossible. An application for restoration was made after 24 years and was allowed. 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 for restoration of land made by respondent-Rajappa was made after an unreasonably 8 long period and was liable to be dismissed on that ground.
Accordingly, the judgments of the Karnataka High Court, 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 Act and, therefore, an application can be made at any time, are overruled. Order accordingly."
6. 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 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.
97. Learned HCGP would also place on record the Judgment rendered by this Court in WP No.6051/2008(SC/ST) C/w.WP 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.
8. In the instant case, the provisions of Section 5 are invoked after passage of more than 30 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.
9. The contention on behalf of the petitioner merits consideration. The counsel for respondent 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 10 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 Division 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.
10. 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 11 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 Legislature is undoubtedly competent to pass an enactment providing that transfers of such granted lands will be void and not merely voidable for properly safeguarding and protecting the interests of the Scheduled Castes and Scheduled Tribes for whose benefit only these lands had been granted. Even in the absence of any such statutory provisions, the transfer of granted lands in contravention of the terms of the grant or in breach of any law, rule or regulation covering such grant will clearly be voidable and the resumption of such granted lands after avoiding the voidable transfers in accordance with law will be permitted. Avoidance of such voidable transfers and resumption of the granted lands through process of law is bound to take time. 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 12 avoiding such transfers and resumption of possession of the granted lands. Prolonged legal proceedings will undoubtedly be prejudicial to the interests of the members of the Scheduled Castes and Scheduled Tribes for whose benefit the granted lands are intended to be resumed. As transfers of granted lands in contravention of the terms of the grant or any law, regulation or rule governing such grants can be legally avoided and possession of such lands can be recovered through process of law, it must be held that the Legislature for the purpose of avoiding delay and harassment of protracted litigation and in furthering its object of speedy restoration of these granted lands to the members of the weaker communities is perfectly competent to make suitable provision for resumption of such granted lands by stipulating in the enactment that transfers of such lands in contravention 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 for achieving this purpose without recourse to prolonged litigation in court in the larger 13 interests of benefiting the members of the Scheduled Castes and Scheduled Tribes."
(underlining by this Court)
11. The Hon'ble Apex Court has been prophetic in rendering the said ruling by observing that, in statues 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 third respondent after more than 30 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 3rd respondent is liable to be rejected.
12. 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 14 time is not stipulated under the statute is not a 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 where 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 hereinbefore is sufficient to quash and set aside the order of the House Allotment Officer. However, 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 thelate Basantrai Sharma 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 Basantrai Sharma died, no one raised the 15 controversy about the entry of the appellant in the premises as being unauthorised or in contravention of clause
22. Basantrai Sharma in his life time tried to obtain possession of the premises from the appellant alleging grounds available to him under the Rent Control Order other than unauthorized entry. This would permit an inference that Basantrai Sharma accepted the appellant as his tenant and his tenancy did not suffer from any infirmity. After Basantrai Sharma died, his successor-in-interest one Smt. Usha Rani N. Sharma did not raise any controversy about the occupation of the premises by the appellant. One Mr. S.P. Pathak, a total stranger has come forward 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. Basantrai Sharma was alive in 1967. If appellant came into the premises because he was holding an office of profit, obviously Basantrai Sharma would not miss the opportunity to evict the appellant because he was otherwise also trying to do the same thing. Rent was accepted without question from the appellant by Basantrai 16 Sharma till his death and thereafter. Could he be at this distance of time, thrown out on the ground that his initial entry was unauthorized. To slightly differently formulatethe proposition, could the initial unauthorized entry, if there be any, permit a House Allotment Officer, 22 years after the entry, to evict the appellant on the short ground that he entered the premises in contravention of clause 22(2) ? Undoubtedly, power is conferred on the Collector to see that the provisions of the Rent Control Order which disclosed a public policy are effectively implemented and if the Collector therefore, comes across information that there is a contravention, he is clothed with adequate power to set right the contravention by ejecting anyone who comes into the premises in contravention of the provisions. But when the power is conferred to effectuate 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 landlord to some extent in pari delicto could turn the tables against the person who was in 17 possession for 22 years as a tenant. In such a situation, even though the House Allotment Officer was to reach an affirmative conclusion that the initial entry 22 years back was an unauthorised entry and that failure to vacate premises till 9 years after retirement was not proper, yet it was not obligatory upon him to pass a peremptory order of eviction 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 connection, we may refer to Murlidhar Agarwal v. State of U.P. wherein one Ram Agyan Singh who came into possession of premiseswithout an order of allotment in his favour as required by sec. 7(2) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, was permitted to retain the premises by treating his occupation lawful and this court declined to interfere with that order. No doubt it must be confessed that sec. 7A conferred power on the District Magistrate to take action against unauthorised occupation in contravention of the provisions of theU.P. (Temporary) Control of Rent and Eviction Act, 1947, but there was a proviso to the section which enabled the District Magistrate not to evict a person found to be in 18 unauthorized occupation, if the District Magistrate was satisfied that there has been undue delay or otherwise it is inexpedient to do so. There is no such proviso to clause 28 which confers power on the Collector to take necessary action for the purpose of securing compliance with the Rent Control Order. But as stated earlier, where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercise of power inheres its exercise within a reasonable time. This is too well established to need buttressing by a precedent. However, one is readily available 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 for exercise of revisional jurisdiction. The Commissioner exercised revisional jurisdiction one year after the Collector 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 Gujarat, this Court declined to interfere holding inter alia that the revisional power in the absence of prescribed period of limitation 19 must be exercised within a reasonable time and period of one year was held to be too late. This aspect must be present to the mindof House Allotment Officer before just rushing in on an unproved technical contravention brought to his notice contrived by the successor-in-interest of the deceased landlord, and evicting the appellant 22 years after his entry and 9 years after his retirement on the short ground that his entry in the year 1954 was in contravention of clause 22(2)."
13. 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 para.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 20 subject to exceptional circumstances and categorically held 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 para.10,11 and 12 is reproduced below.
'10. Recently, in the case of State of Punjab and Others v.
Bhatinda District Coop. Milk Producers Union Ltd. while dealing with the power of revision under Section 21 of the Punjab General Sales Tax Act, 1948, it has been held: (SCC p.367, paras 17-19) "17. A bare reading of Section 21 of the Act would reveal that although no period of limitation has been prescribed therefore, the same would not mean that the suo motu power can 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, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors.
19. Revisional jurisdiction, in our opinion, should ordinarily be exercised within a period of three 21 years having regard to the purport in terms of the said Act. In any event, the same should not exceed the period of five years. The view of the High Court, thus, cannot be said to be unreasonable. Reasonable period, keeping in view the discussions made hereinbefore, must be found out from the statutory scheme. As indicated hereinbefore, maximum period of limitation provided for in sub-section (6) of Section 11 of the Act is five years."
11. It seems to be fairly settled that if a statute does not prescribed the time-limit for exercise of revisional power, it does not mean that such power can be exercises at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is playing that exercise of such power within reasonable time is inherent therein.
12.Ordinarily, the reasonable period within which the power of revision may be exercised would be 3 years under Section 257 of the Maharashtra Land Revenue Code subject, of course, to the exceptional circumstances in a given case, but surely exercise of 22 revisional power after a lapse of 17 years is not a reasonable time.
Invocation of revisional power by the Sub-Divisional Officer under Section 257 of the Maharashtra Land Revenue Code is plainly an abuse of process in the facts and circumstance of the case assuming that the order of the Tahsildar passed on 30.03.1976 is flawd and legally not correct.'
14. 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.
15. Law on the point of delay and laches is well settled by a catena of Judgments be 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 23 to the right of the party, to seek a judicial adjudication of his rights."
There can be no dispute that apart from the action of the authorities, the application not being within a reasonable period, respondent No.3 himself is not diligent and he has woken up after passage of more than 45 years and hence, it is held by this Court that the application stands vitiated on the ground of delay and latches.
The admitted fact is that the petitioner is deprived of the possession of the land by respondent No.2 pursuant to his own order.
In the light of law laid down by the Hon'ble Apex Court, the exercise vested in the authorities is initiated beyond reasonable time even otherwise also the application also stands vitiated.
In view of the above discussion, this Court finds merit in the present writ petition. Accordingly, the writ petition is allowed. Annexures- 'A' and 'B' are quashed.
24Order passed by the respondent No.2 is set aside. It is for the respondent No.2 to take steps forthwith to restore possession of the land to the petitioner.
In the light of the law and facts involved in the litigation, there shall be no order as to costs.
Sd/-
JUDGE Ssd