Karnataka High Court
M/S Creative Developers vs The Assistant Commissioner on 23 August, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO.13725/2022 (SC/ST)
BETWEEN:
M/S. CREATIVE DEVELOPERS
(A PARTNERSHIP FIRM REGISTERED UNDER
THE PROVISIONS OF INDIAN PARTNERSHIP ACT)
NO.B-507, STERLING SHALOM
ITPL MAIN ROAD, KUNDALAHALLI COLONY
WHITEFIELD, BANGALORE-560 037
REPRESENTED BY ITS PARTNER
SMT. ASHA LATHA KUCHIPUDI
W/O SRI K.N.M. RAO
AGED ABOUT 42 YEARS.
...PETITIONER
(BY SRI K.N. PHANENDRA, SENIOR COUNSEL FOR
SMT. VAISHALI HEGDE, ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER
BANGALORE NORTH SUB-DIVISION
KANDAYA BHAVAN, K.G. ROAD
BANGALORE-560 009.
2. SRI MUNIVENKATAPPA
S/O LATE SRI CHINNAGA @ CHNNAPPA
AGED MAJOR
R/O THUBERAHALLI VILLAGE
2
VARTHUR HOBLI, BANGALORE EAST TALUK
BANGALORE-560 037.
3. SRI MUNIKRISHNAPPA
S/O LATE SRI CHINNAGA @ CHNNAPPA
AGED MAJOR
R/O THUBERAHALLI VILLAGE
VARTHUR HOBLI, BANGALORE EAST TALUK
BANGALORE - 560 037.
...RESPONDENTS
(BY SRI SRINIVASA GOWDA, AGA FOR R-1;
R-2 AND R-3 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE
INSTITUTION, REGISTRATION AND CONTINUATION OF
PROCEEDINGS IN CASE BEARING PTCL/BET-05/2022 FILED BY
THE R2 AND 3 VIDE ANNEXURE-G AND PENDING BEFORE THE
R1 UNDER SECTION 5 OF THE KARNATAKA SCHEDULE CASTE
AND SCHEDULE TRIBES (PREVENTION OF TRANSFER OF
CERTAIN LANDS) ACT, 1978 AS BEING WITHOUT
JURISDICTION, ILLEGAL, ABUSE OF PROCESS OF LAW AND
CONTRARY TO THE SETTLED POSITION OF LAW AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The land bearing Sy.No.7/1 measuring 1 acre situated in Thuberahalli Village, Varthur Hobli, Bangalore East Taluk, is the subject matter of this writ petition. The subject land was purchased by one Chinappa @ Chenniga, the father of the 3 respondents No. 2 and 3 herein under the registered sale deed dated 4.3.1966 and in turn the said purchaser sold an extent of 1 acre of land out of the subject land in favour of one Smt. Sampathamma under the registered sale deed dated 14.10.1968.
2. Subsequently, the said Smt. Sampathamma sold the extent of 1 acre of land in favour of Aleyamma under the registered sale deed dated 17.03.1975 and after the death of Aleyamma Koshy, her legal representatives got the land converted for non-agricultural purposes under Section 95 of the Karnataka Land Revenue Act, 1964 from the Deputy Commissioner, Bangalore District and thereafter sold the same in favour of the petitioner by executing the registered sale deed dated 31.1.2004.
3. The sons of respondents No.2 and 3 filed an application under Section 5 of the Karnataka SC-ST (PTCL) Act, 1978 for resumption and restoration of the entire extent of 2 acres of land in Sy.No.7/1 with the Assistant Commissioner 4 concerned on the ground that the alienation of the land was in violation of the condition contained in the grant certificate.
4. The Assistant Commissioner concerned held that the sale deed executed in favour of the petitioner is null and void and restored the subject land in favour of the sons of the respondents No.2 and 3 against which an appeal was filed under Section 5 (A) of the PTCL Act by the petitioner with the Deputy Commissioner concerned. The Deputy Commissioner concerned by order dated 15.3.2012 set aside the order passed by the Assistant Commissioner concerned against which the sons of the respondent Nos.2 and 3 filed the writ petitions in W.P.No.16290/2012 and W.P.No.19096/2012 before this Court. The Co-ordinate Bench of this Court dismissed the writ petitions against which writ appeal was filed and the Division Bench of this Court by order dated 28.7.2017 dismissed the writ appeal confirming the order passed by the learned Single Judge.
5. Such being the case, the respondents No.2 and 3 who are claiming to be the grantees filed an application under Section 5 of the PTCL Act for resumption and restoration of the 5 subject land on the ground that the land was sold in violation of the terms and condition imposed in the grant. The Assistant Commissioner concerned registered the case and issued the impugned notice dated 21.03.2022 to the petitioner to appear in the said proceedings. Being aggrieved by the same, this writ petition is filed.
6. Mr. K.N. Phanindra, learned Senior counsel appearing for the petitioner submits that the application filed by the sons of the respondent No.2 and 3 was dismissed and confirmed by this court. However, the respondents No.2 and 3 suppressing the same have filed the 2nd application under Section 5 of the PTCL Act, and the same is not maintainable. He further submits that the subject land was converted for non-agricultural purpose before commencement of the PTCL Act. In support, he places reliance on the decision of the full bench of this Court in the case of Sri Munnaiah and Others -vs- The Deputy Commissioner, Bangalore and Others reported in ILR 2021 KAR 3169.
7. Respondents No.2 and 3 though served with notice have remained absent.
6
8. On the other hand, learned Additional Government Advocate does not dispute that the earlier application filed by the sons of the respondents No.2 and 3 was dismissed.
9. I have examined the submissions made by the learned counsel appearing for the parties.
10 Admittedly, the land in question was conveyed to the petitioner by registered sale deed dated 31.01.2004 and the proceeding was initiated after a period of 26 years under Sections 5 of the PTCL Act. The order dated 15.03.2012 passed by the Deputy Commissioner concerned indicates that the application filed by the sons of the respondents No.2 and 3 under Section 5 of the PTCL Act was dismissed and the same was confirmed by this Court in W.P.No.16290/2012 and W.P.No.19096/2012 and also in W.A.Nos.4332-4333/2016. Such being the case, respondents No.2 an 3 suppressing the dismissal of the application filed under Section 5 of the PTCL Act alleging that the sale of the subject land was in violation of the terms and conditions imposed in the grant, the second application filed 7 under Section 5 of the PTCL Act for resumption and restoration of the subject land is not maintainable.
11 The Hon'ble Apex court in the case of Nekkanti Rama Lakshmi -vs- State of Karnataka and others in Civil Appeal No.1390 of 2009. while dealing with provisions of the Act has held that Section 5 of the Act neither provides for any period within which an application under the Act has to be made nor prescribes the time within which suo motu action may be initiated. It has been held that the provisions of the statute even in the absence of any period of limitation must be invoked within reasonable time and the period of delay of 25 years in initiation of proceeding has been held to be unreasonable.
12. In the instant case, the proceeding has been initiated after a lapse of 40 years after the Act came into force. However, the aforesaid aspect of the matter has been not appreciated by the Assistant Commissioner. The proceeding initiated after a lapse of 40 years after the Act came into force cannot be said to be initiated within the reasonable time especially in the absence of any explanation in this regard. Thus, it is held that the 8 proceeding for restoration of the land in question have not been initiated within a reasonable time.
13. Accordingly, I pass the following:
ORDER
(i) The Writ Petition is allowed.
(ii) The impugned proceedings pending on the file of the 1st respondent in case bearing No.PTCL/BET-05/2022 and the impugned notice dated 21.03.2022 issued by the 1st respondent are hereby quashed. Consequently, the application dated 7.3.2022 filed by the 2nd and 3rd respondents under Section 5 of the PTCL Act is also dismissed as not maintainable.
Sd/-
JUDGE HR