Karnataka High Court
Sri G Narayanaswamy vs The Deputy Commissioner on 30 May, 2023
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WP No. 49212 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 49212 OF 2012 (SC/ST)
BETWEEN:
1. SRI. G. NARAYANASWAMY,
S/O. GULLAPPA,
AGED ABOUT 44 YEARS.
2. SRI. RAJANNA,
S/O GULLAPPA,
AGED ABOUT 40 YEARS,
BOTH ARE RESIDING AT
THYAVAKANAHALLY,
BIDIRUGUPPE POST,
SARJAPURA HOBLI,
Digitally signed by
ANEKAL TALUK,
LAKSHMINARAYAN
N BANGALORE URBAN DISTRICT- 562 125.
Location: HIGH
COURT OF
KARNATAKA
...PETITIONERS
(BY SRI. M VISHWAJITH RAI, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER,
BANGALORE DISTRICT,
BANGALORE- 560 001.
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WP No. 49212 of 2012
2. THE ASSISTANT COMMISSIONER,
BANGALORE SOUTH SUB-DIVISION,
BANGALORE- 560 001.
3. SRI. B.S. PARAMESH,
S/O. B.M. SIDDALINGAIAH,
MAJOR, R/AT NO. 607,
6TH STAGE, 15TH CROSS,
J.P. NAGAR, BANGALORE- 560 078.
...RESPONDENTS
(BY SRI. VENKAT SATYANARAYANA, HCGP FOR R1 & R2;
SRI. ARJUN SARATHY V., ADVOCATE FOR R3)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS WHICH ULTIMATELY RESULTED IN PASSING OF THE
ORDER AT ANNX-A. QUASH THE ORDER ANNEXURE-A DATED
7.11.12 PASSED BY R1 DEPUTY COMMISSIONER AND ETC.,
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the legal heirs of the original grantee who have questioned the order dated 07.11.2012 passed by respondent No.1-Deputy Commissioner vide Annexure - A, who has allowed the appeal and set aside the order of restoration and -3- WP No. 49212 of 2012 resumption passed by respondent No.2 - Assistant Commissioner.
2. Before I advert to the facts of the present case, it would be useful to refer to the judgments rendered by the Apex Court on this issue in Nekkanti Rama Lakshmi .vs. State of Karnataka and another 1 and Vivek M. Hinduja .vs. M. Aswatha2. It would be also useful to refer to the judgment rendered by a Co-Ordinate Bench of this Court in W.P.No.50446 of 2012, which was confirmed by the Division Bench in W.A.No.16/2021 disposed of on 05.04.2021.
3. The Apex Court in the case of Nekkanti Rama Lakshmi, while interpreting Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (for short "PTCL Act") had an occasion to examine the point of limitation wherein interested person can file appropriate application 1 (2020) 14 SCC 232 2 (2019) 1 Kant LJ 819 SC -4- WP No. 49212 of 2012 seeking annulment of sale as void under Section 4 of the PTCL Act. The Apex Court by reiterating the principles laid down in Chhedi Lal Yadav .vs. Hari Kishore Yadav3 and also in the case of Ningappa .vs. Deputy Commissioner and others4 has held that where Statute did not prescribe the period of limitation, the provisions of the Statute must be invoked within a reasonable time. The Apex Court was of the view that the authorities have to give due regard to the period of time within which action has to be taken by the interested person. The Apex Court was of the view that it is well within the discretion of the competent authorities not to annul the alienations where there is inordinate delay in initiating action by the interested persons under Sections 4 and 5 of the PTCL Act. The co-ordinate Bench of this Court in W.P.No.50446/2012 disposed of on 24.1.2020 declined to entertain the application filed by the original grantee where there was a delay of ten years. This Court was of the view that the 3 (2018) 12 SCC 527 4 (2020) 14 SCC 236 -5- WP No. 49212 of 2012 application itself was not maintainable since the same was not filed within a reasonable time. While recording the finding, this Court relied on the judgment of the Apex Court in Ningappa .vs. Deputy Commissioner and others, where the Apex Court had declined to entertain the application which was submitted after nine years seeking restoration of land under Sections 4 and 5 of the PTCL Act. The judgment rendered by a co-ordinate Bench of this Court in W.P.No.50446/2012 is affirmed by the Division Bench of this Court in W.A.No.16/2021.
4. In the instance case, the petition land was granted to the petitioner's grandfather on 10.07.1940. After the demise of the original grantee, his son alienated the entire extent, measuring 2 acres 7 guntas under two registered sale deeds dated 19.02.1973 and 09.04.1973 in favour of one T.N.Basavaraj. The said T.N.Basavaraj in turn sold to respondent No.3 on 30.06.2007. The grandchildren of the original grantee moved the petition under Section 5 of the PTCL Act seeking restoration on -6- WP No. 49212 of 2012 27.11.2008. Respondent No.2-Assistant Commissioner allowed the application and ordered for restoration. Feeling aggrieved by the order, the purchaser preferred an appeal. Respondent No.1-Deputy Commissioner on reassessing the material on record took a divergent view. Respondent No.1-Deputy Commissioner was of the view that during 1934-35 there were no provisions to impose restrictions or prohibitions on the transfer of the granted lands. Therefore, placing reliance on the judgment rendered by the Division Bench of this Court in the case of Mariyappa vs. Dr.N.Thjimmarayappa and others reported in 2004 (3) KCCR 1471, Respondent No.1-Deputy Commissioner was of the view that the alienation made by the son of the original grantee was very much permissible, and therefore, the sale deeds dated 19.02.1973 and 09.04.1973 as well as the sale in favour of respondent No.3 on 30.06.2007 are valid and the provisions of PTCL Act are not applicable to the present case on hand. The said order is under challenge at the instance of the legal heirs of the original grantee.
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5. The contention of the learned counsel for the petitioner is that the grant order itself indicates that the prohibition was imposed on the grantee from alienating the grant land, and therefore, Respondent No.1-Deputy Commissioner, without taking cognizance of the condition imposed in the grant certificate, erred in relying on judgment rendered by Co-ordinate Bench of this Court cited supra.
6. In the light of the dictum laid down by the Hon'ble Apex Court in the judgment cited supra, I am of the view that the said controversy as to whether there is a permanent prohibition or that alienations were made by the legal heir of the original grantee without permission is of no consequence. In the light of the judgment laid down by the Hon'ble Apex Court, the question that requires consideration is as to whether the grand children of the original grantee could have moved a petition seeking restoration after lapse of 34 years. My answer is emphatically NO. The Hon'ble Apex Court has clearly held -8- WP No. 49212 of 2012 that the Assistant Commissioner, while entertaining the restoration application under Section 5 of the PTCL Act, has to bear in mind whether the grantee sought restoration within a reasonable time. In the instance case, the diligence on the part of petitioners is woefully lacking.
7. In the present case on hand, there is a delay of 34 years in initiating action. The authorities below have not examined the delay and laches in moving the application. The judgments cited supra clearly indicates that on the ground of gross delay and laches, the application made by the grantee or by the legal heirs under Section 5 of the PTCL Act requires to be rejected. The Hon'ble Apex Court in the above cited judgment has held that where statute does not provide for limitation, the authorities and State must act consciously and if the process of invoking the provisions of statute is delayed and is initiated after long lapse of time, the delay by itself would act as an impediment. Thus, without exception and coming across various rules of law, the Apex Court has -9- WP No. 49212 of 2012 categorically stated the law in respect of exercise of power/jurisdiction under statute where no limitation is stipulated. The law on the point of delay and laches to invoke the provisions of PTCL Act is well settled by catena of judgments.
8. In the present case on hand, I would find that the action is grossly delayed and taken beyond reasonable time. This Court would also find that the land was alienated several times during this period, obviously with an impression that vendor had saleable title. In that view of the matter, the application filed by petitioner seeking resumption and restoration of granted land on the ground that the transfer is in violation of Section 4 of the PTCL Act is not at all maintainable since the same is not filed within a reasonable period.
9. The principles laid down by the Apex Court in Chhedi Lal Yadav .vs. Hari Kishore Yadav 5 [(2018) 5 (2018) 12 SCC 527
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WP No. 49212 of 201212 SCC 527] is also squarely applicable to the present case on hand. The Apex Court was of the view that if there is inordinate, unexplained and unjustified delay on the part of the applicant in seeking restoration of the land, such inaction would create a right in favour of other party. Therefore, the Apex Court was of the view that time must be reckoned reasonably, not only in order to preserve the rights and advantages which party possesses but equally to protect each party from losses he ought not to suffer. The registered sale deeds are public documents and after verifying the public documents, if citizens enter into further transaction believing such public documents to be genuine, the subsequent alienations cannot be set at naught by showing leniency to aggrieved party who has slept over his rights, if rights are crystallized on account of inaction on the part of the original grantee. The said application has to be rejected on this count also.
10. In view of the discussion made supra, this Court is not inclined to interfere with the order of respondent
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WP No. 49212 of 2012No.1-Deputy Commissioner. Though reasons assigned by respondent No.1-Deputy Commissioner while rejecting the petition are on some other grounds, however, in the light of principles laid down by the Hon'ble Apex Court, this Court is of the view that respondent No.2-Assisant Commissioner erred in entertaining the restoration petition without taking note of the fact that restoration is sought after lapse of 34 years. Therefore, this is not a fit case that warrants interference. Respondent No.3 is a second purchaser. The first sale deed is of the year 1973. The rights of the subsequent purchaser, who is obviously the bona fide purchaser has to be protected in the light of principles laid down by the Hon'ble Apex Court in the case of Chhedi Lal Yadav.
11. The judgment cited by the learned counsel for the petitioners in the case of K.Rajendran vs. The Deputy Commissioner in W.P.No.12242/2018 is not at all applicable to the present case on hand. In the said case, though the sale deed was executed on 14.10.1976
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WP No. 49212 of 2012on account of defect, it was kept upon till 2004 and the original sale deed was issued to the purchaser in 2005. Within two months, the grantee sought for restoration. It is in this background, the Co-ordinate Bench of this Court held that grantee was justified in approaching the Assistant Commissioner in the year 2005 and not earlier as contended by the purchaser. The facts in the judgment relied on and the facts in the instance case are totally different. In the present case on hand, there is gross delay of 34 years.
12. For the reasons stated supra, I proceed to pass the following:
ORDER
(i) The writ petition is devoid of merits and accordingly, stands dismissed.
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JUDGE hdk