Karnataka High Court
Smt. Shamalamma vs Sri. Chikkamunishami @ Tahyiga Since ... on 11 March, 2020
Author: H T Narendra Prasad
Bench: H.T.Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH 2020
BEFORE
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
W.P.No.40381 OF 2011(SC-ST)
BETWEEN:
1. Smt. Shamalamma,
W/o Shamanna,
Aged about 75 years,
R/at No.72 Munnekolalu Village,
Varthur Hobli,
Bangalore East Taluk,
Bangalore-560 037.
2. Sri. M.S.Shankara Reddy,
S/o Shamanna,
Aged about 55 years,
R/at No.23, 4th A Cross,
Near Ashvini Stores,
Munnekolalu Village,
Varthur Hobli,
Bangalore East Taluk,
Bangalore-560 037. ... Petitioners
(By Sri.D.N.Nanjunda Reddy, Senior Counsel, for
Sri. Reuben Jacob, Advocate)
AND:
1. Sri. Chikkamunishami @ Tahyiga,
Since dead by his LRs.
2
1(a) Sri. Venkataswamy,
S/o Late. Thimmaiah,
(Grand son of Sri. Chikkamunishami @ Tahyiga),
R/at Munnekolalu Village,
Varthur Hobli, Bangalore East Taluk,
Bangalore-560 037.
2. Late. Changalaraya,
S/o Late Ganga,
Since deceased by his LRs.
2(a) Sri.C.Muniraju,
S/o Late Changalaraya.
2(b) Sri. C.Balakrishna,
S/o Late Changalaraya.
2(c) Smt. Pushpa,
D/o Late Changalaraya.
2(d) Smt. C. Shakuntala
D/o Late Late changalaraya.
2(e) Smt. C. Padma,
D/o Late Changalaraya.
2(f) Sri. C. Mani,
S/o Late Changalaraya.
Since deceased by his LRS.
2(f)(i) P.Latha
W/o Late C.Mani,
Aged about 45 years.
2(f)(ii) M.Karthik,
S/o Late C. Mani,
Aged about 26 years.
3
2(f)(iii)M. Sneha,
D/o Late C.Mani,
Aged about 23 years.
Rf(i) to R(f)(iii) are R/at,
No.36, 8th Cross, Lakshmi Layout,
Munnekolala, Marathahalli,
BBengaluru-560 037.
R2(a) to R(f) are children's of
Late Changalaraya All are R/at,
Munnekolalu Village, Varthur Hobli,
Bangalore East Taluk.
3. The Special Deputy Commissioner,
Bangalore Urban District,
Bangalore.
4. The Assistant Commissioner,
Bangalore North Sub-Division,
Bangalore.
5. The Tahsildar,
Bangalore East Taluk,
K R Puram, Bangalore. ... Respondents
(By Sri.Vivek S Reddy, Senior Counsel for
Sri. K.N.Subba Reddy, Advocate for R1(a) & R2(f)(i to iii),
Sri. K.Suresh, Advocate for R2 (a-e),
Smt. Savithramma, HCGP. For R3 to R5)
This writ petition is filed under Articles 226 & 227 of the
Constitution of India praying to quash the order dated:
10.10.2011 passed in SC:ST (A):02/2010-11 by the respondent
No.3 vide Annexure A to the writ petition and dismiss the said
appeal preferred by the Respondent Nos. 1 & 2 in
SC:ST(A):02/2010-2011.
4
This writ petition, coming on for hearing, this day, the
Court, made the following:
ORDER
This writ petition is directed against the order dated 10.10.2011 vide Annexure-A passed by the third respondent whereby the Special Deputy Commissioner has allowed the appeal filed by the legal representatives of the original grantee under Section 5A of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, 'the PTCL Act') and set aside the order passed by the Assistant Commissioner.
2. The case of the petitioners is that the land bearing Sy.No.132 (Old Sy.No.44/1) measuring 2 acres 26 guntas situated at Munnekolalu Village, Varthur Hobli, Bangalore East Taluk was originally granted in favour of one Changalaraya, son of Ganga under Darkasth Rules on 06.03.1929 and saguvali chit was issued on 20.05.1942. The original grantee sold the land in favour of husband of the first petitioner and father of the second petitioner under a sale deed dated 15,05.1945. From the date of purchase the petitioners are in possession and enjoyment of 5 the property. The PTCL Act came into force on 01.01.1979.
The authority has initiated suo-motu proceedings in the year 2006 under Sections 4 and 5 of the PTCL Act. The Assistant Commissioner by order dated 07.12.2007 has dismissed the application. Being aggrieved by the same, the legal representatives of the original grantee have filed an appeal before the Deputy Commissioner under Section 5A of the PTCL Act. The Deputy Commissioner by order dated 10.10.2011 allowed the appeal and set aside the order passed by the Assistant Commissioner. Being aggrieved by the same, the petitioners are before this Court.
3. Sri D.N.Nanjunda Reddy, learned Senior Counsel appearing for Sri Reuben Jacob for the petitioners contended that the land has been granted in the year 1929 with a condition of non-alienation for a period of 10 years and the land has been sold on 15.05.1945 after lapse of 10 years. There is no violation of provisions of the Darkasth Rules. Therefore, the application filed under Sections 4 and 5 of the PTCL Act is not maintainable.
Secondly, he contended that the land has been purchased on 15.05.1945 and as on the date the Act came into force on 6 01.01.1979 the petitioners were in possession of the property and enjoyment uninterruptedly for more than 30 years, they have perfected their title by adverse possession. Hence, the PTCL Act is not applicable for the said land. Thirdly, he contended that the first sale has taken place on 15.05.1945 and suo-motu proceedings under Sections 4 and 5 of the PTCL Act has been initiated in the year 2006, after a lapse of more than 26 years from the date the Act came into force. There is inordinate delay in invoking the provisions of PTCL Act. The application itself is not maintainable. In support of his contention that the application itself is not maintainable he has relied on the judgment of the Hon'ble Apex Court in the case of NEKKANTI RAMA LAKSHMI vs. STATE OF KARNATAKA AND ANOTHER reported in 2017 SCC Online SC 1862. Hence, he sought for allowing the writ petition.
4. Per contra, Sri Vivek S.Reddy, learned Senior Counsel appearing for respondent Nos. 1 and 2 contended that the land has been granted under Darkhast Rules on 06.03.1929 and saguvali chit has been issued on 20.05.1942. The possession has 7 been handed over as on the date of saguvali chit and the same has to be considered as an effective date of grant. The said land has been granted with a condition not to alienate the land for a period of 20 years. By violating the grant conditions, the land was sold on 15.05.1945. In support of his contention, he has relied on the judgment of this Court in the case of NARASA REDDY & ANOTHER vs. DEPUTY COMMISSIONER, CHITRADURGA reported in ILR 2002 Kar.2758. Secondly, he contended that in respect of adverse possession there is no deemed adverse possession. There should be a pleading and they have to prove that there is animus possedendi, as is well known, which is a requisite ingredient of adverse possession. In support of his contention he has relied on the judgment of a Division Bench of this Court in the case of MUNIREDDY AND OTHERS vs. STATE OF KARNATAKA reported in ILR 2010 Kar.1703. Thirdly, he contended that in respect of limitation, this is the first time the petitioner has taken this contention before this Court. Hence, the same is unsustainable. He further contended that the PTCL Act is a social beneficial legislation, the Limitation Act is not applicable and he further submitted that in 8 view of the law laid down by the Hon'ble Apex Court in the case of SATYAN vs. DEPUTY COMMISSIONER AND OTHERS reported in AIR 2019 SC 2797, there is no delay in invoking the provisions of the PTCL Act and, he contends that the Hon'ble Apex Court in the case of AMARENDRA PRATAP SINGH vs. TEJ BAHADUR PRAJAPATI reported in (2004) 10 SCC 65 has held that the application filed after a lapse of 26 years is not an unreasonable delay. Hence, he sought for dismissal of the writ petition.
5. Heard learned counsel for the parties and perused the writ papers.
6. It is not in dispute that the land in question measuring 2 acres 26 guntas was originally granted in favour of one Changalaraya S/o. Ganga under Darkasth Rules in the year 1929. After phodi, it has been given a new Sy.No.132. As per the saguvali chit which has been issued on 20.05.1942 there is a condition of non-alienation for a period of 20 years. A Full Bench of this Court in the case of NARASA REDDY (supra) held as hereinbelow:
9"13. The Government lands are granted either free of cost or at an upset price to the persons belonging to the depressed class who are illiterate and who are agricultural labourers, the reason being that these people belonging to depressed classes namely, the Scheduled Castes and Scheduled Tribes because of their poverty were unable to purchase land in open market and cultivate the same. Therefore, Government granted these lands with the object of enabling the persons belonging to weaker section to become prosperous in life so that they can come out of their age old poverty. To achieve this object the grantees had to be put in possession of the land and they had to cultivate the land for a particular period of time. It is to prevent any other person from depriving those grantees of the said land this clause regarding prohibition" of alienation was introduced. But, contrary to such an intention in practice it was found that such land was alienated even before the expiry of the period prescribed. Now, the question remains if possession is not given simultaneously from the date of the grant, whether the period can be computed to justify the prohibition period from the date of grant or saguvali chit. But, in certain cases, for some reason or the other, if possession is given prior to the grant, the date of 10 grant does not arise unless he has got a right and started enjoyment of the property. As there was no effective remedy for taking action for violation of the terms of the grant, the Act of 1978 came to be passed. The object of the said legislation as already stated, is to provide for the prohibition of transfer and for restoration of lands granted by the Government belonging to the Scheduled Castes and Scheduled Tribes in the State. It is in this context to find out whether there is a contravention of this non- alienation clause what should be the starting point. According to the relevant rules after an application is made for grant of land it has to be processed at the lower level and then the authority competent to grant such land grants the same. After an order of grant is made a grant certificate which is in the nature of a title deed or a saguvali chit is to be issued to the grantee demarcating the extent of land granted to him and on such certificate being issued he can enter upon the land and cultivate the same. However, in practice it was noticed though order of grant was made the grantee was not put in possession. He was put in possession later and saguvali chit is a document evidencing the factum of delivery of possession to the grantee. There are also cases where even before the order of grant the 11 grantee was already in possession and an order of grant was made subsequently. Therefore, on the date of the order of grant if the grantee is put in possession and grant certificate is also issued there is no difficulty in holding that period of non- alienation is to be computed from the date of grant itself. But if on the date of grant order possession is not delivered, but possession is delivered subsequently under a grant certificate or a saguvali chit, then that would be the effective date from which the grantee is entitled to enter upon the land and cultivate the land and enjoy and have the benefit of the land granted and therefore the period of non-alienation is to be computed from the said date. The whole object is that grantee should enjoy the land by cultivating the same for a period stipulated in the grant order or the grant certificate. If the grantee is already in possession prior to the date of grant as he had no title to the said land date of order of the grant confers on him the title to the land and therefore it is the date of order of grant which is to be taken into consideration. The legislative intent is clear from the words used in 1969 Rules where the term "date of grant" was deleted and "date of possession" was introduced. In either of the rules date of saguvali chit is not 12 referred to at all. If date of saguvali chit is to be taken as the date on which grantee is put in possession then irrespective of the date of grant it is the date on which the saguvali chit was issued that is to be taken into consideration for computing the period. But even if on the date of saguvali chit possession is not delivered and it is delivered, subsequently, the date of Saguvali Chit loses significance. But, if possession is delivered on the date of grant itself and saguvali chit is issued at a later date even then the date of saguvali chit is of no consequence. Therefore, the crucial date in our opinion would be the date of taking possession of the granted land by grantee, as is clear from the language employed in Rule 9 of the 1969 Rules. Merely because in the 1956, 1958 Rules the words used are date of grant and not date of taking possession, it cannot be said date of taking possession is of no consequence in computing the period of non-alienation clause in respect of grants prior to 1969 Rules. If date of taking possession is taken into consideration, the controversy which has given rise in the aforesaid decisions would lose importance and pales into insignificance. It would also achieve the object sought to be achieved not only by the rules but also by enacting the Act. The 13 letter of law is to be taken as conclusive, unless a literal interpretation of the statute would result in such absurdity and unreasonableness as to make it too obvious that the Legislature could not have meant what it said. It is well-settled that when on a construction of a statute two views are possible, one which results in an anomaly and the other not, it is the duty of the Court to adopt the latter and not the former seeking consolation in the thought that the law bristles with anomalies. The situation calls for a harmonious construction. The soul of the legislation is to see that the property granted to members of Scheduled Castes or Scheduled Tribes remained with them or enjoyed by them at least for the period stipulated in the grant. These grantees are members of the weaker section of the society; they are exploited class; that special statutory protection is needed to safeguard their interest; the land was granted to landless people and if alienation is allowed unchecked then the object of the very grant would be defeated. Therefore, any interpretation to be placed on the rule should be to further the object of the legislation and to prevent any mischief being perpetuated by persons with vested interests. In other words, as the land has been granted to such landless persons with some conditions; the object of 14 the Act is that they should enjoy the property for which they have been granted, meaning thereby, the period will start from the date they have started enjoyment of the land, that is from the date of possession. Therefore, in our view, if any person purchases land from a person belonging to weaker section of the society, that is SCs/STs community, the prohibition period will count from the date of possession. Under these circumstances, we are of the opinion the expression "date of grant" for the purpose of computing the period of prohibition against alienation under 1956 and 1958 Rules has to be understood as from the date of taking possession of the land. Therefore, if possession has been delivered prior to the date of the order of grant then the date of order of grant, if possession is delivered on the date of order of grant the date of order of grant and if possession is delivered subsequent to the order of grant, the date of taking of possession is the period from which the period of prohibition has to be computed."
7. It is very clear from the above judgment that as on the date of grant, possession is not delivered. The effective date for which the grantee is entitled to enter upon the land was when the saguvali chit has been issued. In the case on hand, when the 15 possession was delivered, it is immaterial since the land in dispute was sold within 20 years (i.e., within the non-alienation period).
8. Even though under the Government Order dated 29.03.1924 has prescribed the non-alienation period as 10 years, but saguvali chit was issued by the authorities on 20.05.1942 with a condition not to alienate the property for a period of 20 years. The Hon'ble Apex Court in the case of GUNTAIAH AND OTHERS vs. HAMBAMMA AND OTHERS reported in 2005 (6) SCC 228 has held as hereinbelow:
"9. A careful scrutiny of the entire scheme of the rules relating to grant of lease to landless persons would show that the finding of the Full Bench on this issue is legally not sustainable. First of all, Rule 43-J is only a general rule which says that the lands which have been given on lease for agricultural purposes could be assigned to the lessees if they complied with the conditions of lease. The title to the land primarily vests with the Government. The Government while granting title to the lessees, can impose any conditions which are permissible under law. The land is being given to 16 lessees either free of cost or at a price which is less than the full market price. It is not an outright sale made by the Government for full consideration. In all these cases, lands were given almost free of cost. The upset price of the land was either fixed at Rs. 200-250 per acre and this Rs. 200 itself was waived and the grantee was to remit only Rs. 50 per acre. Grantee was to execute "Saguvali Chit"
and it incorporated a condition prohibiting alienation for a period of 15 years. The history of the legislation also would show that the State of Karnataka has all along been giving lands to the landless persons belonging to Scheduled Castes and Scheduled Tribes subject to the restriction on alienation of such land.
10. Rule 43-J is a general provision which empowers the authorities to invest the lessees with title of the land provided the lessees fulfilled the conditions of lease. The High Court assumed that conditions of alienation are not stated in Rule 43-J and therefore, the authorities were not empowered to impose such conditions. Rule 43-J is only an enabling provision which permits the competent government authorities to grant title to lessees. The Government being the paramount title-holder is empowered to impose any condition which is not 17 against the law and it is binding on the grantees. All these grants of land are made under the general provisions of rules and Rule 43-J by itself is not a provision by which grants are made. All the general provisions of the Rules of 1960 could be made applicable to such grant if the grant is made at a price lesser than the market price, or is made free of cost.
11. In the title to Rule 43-G, it is stated that the grants of lands under the preceding rules shall be subject to the following conditions. This title to the rules as such cannot be taken as the key words to interpret Rule 43-G. They have got the effect of only marginal notes. The marginal notes are not considered as legitimate aid to construction of any section or rule. The side notes are not considered as part of the Act. Lord Macnaghten in a case decided by the Privy Council held that the marginal notes cannot be referred [1964] A.C. 763 said: " In my view, side notes cannot be used as an aid to construction. They are mere catchwords and I have never heardthat an amendment to alter a side note could be proposed in either House.So side notes cannot be said to be enacted in the same sense as the long title or any part of the body of the Act."
1812. When the rule itself says that where the grant is made free of cost or at a price which is less than the full market value, such grant shall be subject to the condition that the land shall not be alienated for a period of 15 years from the date of the grantee taking possession of the land after the grant, such conditions could be imposed on any grant made to the party.
13. In any case, the High Court failed to take into account the clear language employed in Section 4, according to which any transfer of granted land made either before or after the commencement of this Act 'in contravention of the terms of the grant of such land' shall be null and void(emphasis supplied). The violation of the terms of grant itself gives rise to the action under Section 4 read with Section 5. So long as the terms of the grant prohibiting transfer are not opposed to any specific provision of law, they cannot be violated and the transferee gets no rights by virtue of such invalid transfer. That is the sum and substance of Section 4 which has not been duly considered by the High Court.
14. It is also pertinent to note that the prohibition regarding alienation is a restrictive covenant 19 binding on the grantee. The grantee is not challenging that condition. In all these proceedings, challenge is made by the third party who purchased the land from the grantee. The third party is not entitled to say that the conditions imposed by the grantor to the grantee were void. As far as the contract of sale is concerned, it was entered into between the Government and the grantee and at that time the third party purchaser had no interest in such transaction. Of course, he would be entitled to challenge the violation of any statutory provisions but if the grant by itself specifically says that there shall not be any alienation by the grantee for a period of 15 years, that is binding on the grantee so long as he does not challenge that clause, more so when he purchased the land, inspite of being aware of the condition. The Full Bench seriously erred in holding that the land was granted under Rule 43-J and that the authorities were not empowered to impose any conditions regarding alienation without adverting to Section 4 of the Act 2 of 1979. These lands were given to landless persons almost free of cost and it was done as a social welfare measure to improve the conditions of poor landless persons. When these lands were purchased by third parties taking 20 advantage of illiteracy and poverty of the grantees, Act 2 of 1979 was passed with a view to retrieve these lands from the third party purchasers. When Act 2 of 1979 was challenged, this Court observed in Manchegowda "17. Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. At the time of the grant, a condition had been imposed for protecting the interests of the original grantees in the granted lands by restricting the transfer of the same. The condition regarding the prohibition on transfer of such granted lands for a specified period, was imposed by virtue of the specific term in the grant itself or by reason of any law, rule or regulation governing such grant. It was undoubtedly open to the grantor at the time of granting lands to the original grantees to stipulate such a condition the condition being a term of the grant itself, and the condition was imposed in the interests of the grantee. Except on the basis of such a condition the grantor might not have made any such grant at all. The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable 21 restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding of property within the meaning of Article 19(1) (f) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. It has to be pointed out that the prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which the prohibition was to remain operative. Experience had shown that persons belonging to Scheduled Castes and Scheduled Tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of the sad plight of these poor persons for depriving them of their lands. The imposition of the condition of prohibition on transfer for a particular period could not, therefore, be considered to constitute 22 any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal."
9. In this case, the land was granted on 06.03.1929, saguvali chit was issued on 20.05.1947 with a condition not to alienate the property for a period of 20 years. The land was sold on 15.05.1945 by violating the Land Grant condition. Therefore, the first contention of the learned counsel for the petitioner that there is no violation of land grant condition is unsustainable.
10. In respect of second contention regarding adverse possession, the land has been granted on 06.03.1929 and saguvali chit was issued on 20.05.1942 with a condition of non-
alienation for a period of 20 years. The original grantee has sold the land in favour of husband of the first petitioner and father of the second petitioner on 15.05.1945. From the date of purchase till the PTCL Act came into force on 01.01.1979 the petitioners are in possession and cultivation of the property uninterruptedly.
They have raised the contention before the Assistant 23 Commissioner that they have perfected their title by adverse possession. In the case of MUNIREDDY (supra) this Court has held as hereinbelow:
"16. In the case of K.T. Huchegowda vs. Deputy Commissioner and others, (1994) 3 SCC 536), the Apex Court has held that, a plea of adverse possession could be raised in the same manner as is prescribed under the provisions of the Limitation Act. It has been further held that for the purpose of determining the period of limitation as to whether 12 years of 30 years is applicable, it has to be examined on its own merits and on the materials placed in support of the said claim, especially, the deed of grant in favour of the original grantee, for the purpose of recording finding as to whether the grant was in the nature of absolute transfer of the title of the State Government in favour of the grantee or it was a mere allotment for enjoyment of the lands in question. Such claim shall be examined taking into account whether the appellant has raised this plea at the earliest opportunity, i.e., before the Assistant Commissioner and what material has been produced by the appellant before the Assistant Commissioner in support of such claim.24
17. Claim by adverse possession, has two elements;
(i) the possession of the appellants should become adverse to the 4th respondent and/or the State and
(ii) the appellants and their father must have continued to remain in possession for a period of 30 years thereafter. Animus possidendi as is well known, is a requisite ingredient of adverse possession. It is well settled principle of law by catena of decisions of the Apex Court that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. The person in possession must continue in the said capacity for the prescribed period under the Limitation Act. Mere long possession, it is trite, for a period more than 12 / 30 years, without anything more do not ripen into a title".
11. It is very clear from the above judgment that there should be a plea before the Assistant Commissioner and they have to prove that they have been in possession of the property adverse to the right of the owner of the property uninterruptedly 25 for a period of 30 years and also a Division Bench of this Court in the case of V.MUNISWAMY vs. DEPUTY COMMISSIONER AND OTHERS reported in 1993 (3) Kar.L.J.346 has held as hereinbelow:
"1. In this Writ Appeal, the Writ petitioner has submitted that the alienation of the disputed land in his favour made as early as 20th February, 1953 by the original grantee, who was a member of the Scheduled Caste, cannot be voided under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, for short the 'Act'. The transaction was declared null and void by the Authorities and the possession of the land was ordered to be restored to original grantee-Appellant's Vendor. He challenged that action unsuccessfully, before the learned single Judge in Writ Petition No. 26674/1992. That is how he has come by way of this Appeal.
2. A few relevant facts are to be noted to appreciate the grievance made by the Appellant for our consideration. An extent of 2 acres and 3 guntas comprised in Sy.No. 81 of Doddiganahalli, was regranted to one Mudduga Bin Hanumanthuga in the year 1942-43. The said grantee had sold the 26 aforesaid extent of land to the appellant by a registered Sale Deed dated 22nd February, 1953, The Karnataka Legislature enacted the aforesaid Act, which came into force from 1.1.1979. Section 4 of the said Act provided as under:-
"Notwithstanding anything in any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of the Act, in contravention of the terms of the grant, of such land or the law providing for such grant, or Sub-section (2) shall be null and void and no right, title or interest to such land shall be conveyed nor be deemed ever to have conveyed by such transfer.
(2) No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land, without the previous permission of the Government.
(3) The provisions of Sub-sections (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a civil Court or of any award or order of any other authority".
The original vendor's son one Shri A.K. Hanumappa, initiated action before the Assistant Commissioner for resumption of the land in question. He submitted before the Authority exercising powers under the Act 27 that the transaction of sale in favour of the appellant had become null and void as per Section 4(1) of the Act, as his father belonged to Scheduled Caste and therefore the transaction entered into by his father in favour of the Appellant would be hit by Section 4 of the Act. The Authority exercising powers under Section 5 of the Act passed order on 22nd July 1987, declaring the sale transaction effected in favour of the appellant as not valid. It may be noted that the aforesaid proceedings were initiated before the Competent Authority, under the Act, in November, 1983. Against the order of 1984, there was an Appeal preferred by the Appellant. The Appellate Authority by its Order dated 7.11.1985 allowed the Appeal and remanded the matter for fresh disposal. After remand, the jurisdictional Assistant Commissioner initiated action once again and gave notice to the parties. The Assistant Commissioner after giving opportunity to parties by his Order dated 22nd July 1987 declared the sale transaction effected in favour of the Appellant as invalid and directed resumption of the property. Appellant once again preferred an Appeal as invalid and directed resumption of the property. Appellant once again preferred an Appeal to the Deputy Commissioner, Kolar District. The Appellate Authority, dismissed the 28 Appeal on the 25th September, 1990, confirming the Order of the Assistant Commissioner, dated; 22nd July, 1987. Under these circumstances, the Appellant came to this Court by way of Writ Petition.
3. The contention of the Writ Petitioner before the learned single Judge and which is repeated before us is to the effect that as the transaction in favour of the Appellant was entered into by the original grantee on 20th February, 1953, the Appellant completed continuous period of adverse possession within 30 years from the date of the transaction i.e., by 20th February 1983 his adverse possession became complete and he become the full owner of this property not liable to be subjected to proceedings under Section 4 read with Section 5 of the Act. The action was initiated for the first time on the application of original vendor's son Shri A.K. Hanumappa in November, 1983 and by that time the Appellant had already completed more than 30 years of adverse possession and consequently sale transaction could not be held to be void under Section 4 read with Section 5 of the Act. He further submitted that though it was true that on 1.1.1979 when the Act came into force the Appellant had not completed 30 years of adverse possession but only because the Act was enacted, without taking any 29 action against him and destroying the continuance of his adverse possession, the running of adverse possession could not be intercepted and consequently running of 30 years got completed from the date of transaction and prior to initiation of action under Section 5 read with Section 4 end therefore curtain must drop on this case and the transaction becomes immune from the sweep of the Act. The learned Counsel in support of this contention placed reliance on the following two Decisions of the Supreme Court: (1) In MANCHE GOWDA v. STATE OF KARNATAKA AND ORS., ILR 1984(2) KAR 1and as later clarified by the same Bench of the Supreme Court in the case of (2) SUNKARA RAJYALAKSHMI v. STATE OF KARNATAKA, ILR 1987 KAR 2076. Relying on these Decisions the learned Counsel submitted that the concept of adverse possession by the transferees of such transactions has been recognised by the Supreme Court in connection with the present Act and if that is so, running of adverse possession would naturally not stop on 1.1.1979 when the Act was enacted and therefore 30 years period which should be counted for deciding the adverse possession of the transferee of any voidable transaction under the Act must be computed with reference to the date of initiation of 30 the proceedings under Section 5 read with Section 4 of the Act and not prior thereto. The learned Single Judge did not agree with this contention and in our view rightly so. The aforesaid Decisions of the Supreme Court, put an end to the controversy raised before us."
12. It is very clear from the above judgment that there should be a pleading regarding adverse possession at the first instance itself and he has to prove that he is continued with the possession uninterruptedly adverse to the right of the owner of the property. In the case on hand, the petitioners have raised the plea before the Assistant Commissioner and they have taken a specific contention in a statement of objection filed before the Assistant Commissioner vide Annexure-F, which reads as hereinbelow:
"16. It is submitted with great respect that Sri.Chikka Venkata Reddy was in continuous and uninterrupted possession of the lands bearing Sy.No.44/1 and 44/2 new numbers Sy.No.131 and 132 since the date of purchase i.e., 01.04.1945 and 15.05.1945. It is respectfully submitted that since the date of commencement of the Act the title of 31 Sri.Chikka Venkata Reddy, ceased to be voidable by reason of acquisition of prescriptive right on account of long and continued user for requisite period. As such the title of Sri.Chikka Ventaka Reddy and subsequently these respondents could not be considered as rendered void by virtue of the provisions of the Act by holding that the Act without violating the constitution guarantee. As such the application of the Act will apply to transfers of granted lands made in breach of the conditions imposing prohibition on transfer of granted lands only in those cases where the title acquired by the transferee was still voidable at the date of commencement of the Act and had not lost its defeasible of the Act and had not lost its defeasible character at the date when the act came into force.
17. It is submitted that without prejudice to the contentions taken above this defendants is adviced to submit that the Hon'ble Supreme Court has time and again held that "Transferees of the granted lands having perfected and not a voidable title at the commencement of the act must be held to be outside the pale of the provisions of the Act. "section 4 of the Act must be so construed as not to have the effect of rendering void the title of any 32 transferees which was not voidable at the date of commencement of the Act".
18. It is submitted that in view of the above it is pertinent to mention that the sale deeds in favour of Sri Chikka Venkata Reddy is in the year 15.05.1945 i.e., 39 years prior to the date of coming into force of the Act i.e., 01.01.1979. As such in the light of the observations made by the Hon'ble Supreme Court and Sri.Chikka Venkata Reddy having perfected his title over the said lands by way of adverse possession prior to 01.01.1979 the said lands would be saved from the sweep of the Act."
13. Therefore, it is clear that as per the judgment of this Court referred to above, the petitioners have taken a plea of adverse possession before the Assistant Commissioner and they have proved that they have been in uninterrupted possession for more than 30 years before the Act came into force.
14. In respect of their third contention is concerned, the land has been granted on 06.03.1929 and saguvali chit has been issued on 20.05.1942 with a condition not to alienate the property for a period of 20 years. By violating the condition, the 33 original grantee sold the land in favour of the husband of the first petitioner on 15.05.1945. The PTCL Act came into force on 01.01.1979. Section 4(1) of the PTCL Act is extracted hereinbelow:
"4. Prohibition of transfer of granted lands.-
(1) Notwithstanding anything in any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or 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."
15. According to the above Section, any transfer of granted land whether before or after the commencement of the Act in contravention of the terms of the grant is null and void.
The land has been sold by violating the land grant condition.
Section 5 of the Act is extracted hereinbelow:
"5. Resumption and restitution of granted lands.- (1) Where, on application by any interested person or on information given in writing by any 34 person or suo-motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of section 4, he may,- (a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed: Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard; (b) restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir; such land shall be deemed to have vested in the Government free form all encumbrances. The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the rules relating to grant of land."
16. A reading of Section 5(1) shows that if there is any violation of Section 4(1) of the PTCL Act, the Assistant Commissioner can initiate proceedings for taking possession of the land. Since there is violation of Section 4(1) of the Act suo-
motu proceedings have been initiated in the year 2006. The initiation of proceedings is after a lapse of 27 years from the date the Act came into force. The initiation of the proceedings 35 itself is after unreasonable delay. The Hon'ble Apex Court in the case of NEKKANTI RAMA LAKSHMI vs. STATE OF KARNATAKA AND ANOTHER reported in 2017 SCC Online SC 1862 has held as hereinbelow:
"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 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 36 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 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."
17. It is very clear from the above judgment that for invoking the provisions of Sections 4 and 5 of the PTCL Act the 37 application has to be filed within a reasonable time. In the case on hand, the land has been granted on 06.03.1929, sale has taken place on 15.05.1945 and suo-motu proceedings was initiated in the year 2006 after a lapse of 27 years. There is an inordinate delay in invoking the provisions of the Act. In view of the law laid down by the Hon'ble Apex Court, the initiation of suo-motu proceedings under Section 5(1) of the PTCL Act itself is not maintainable. Hence, the impugned order is unsustainable.
18. In respect of the contention raised by the respondents relating to the judgment of the Hon'ble Apex Court in the case of SATYAN (supra) and the contention that 27 years delay in invoking the provisions of the PTCL Act is not an inordinate delay when the Limitation Act is not applicable, a Division Bench of this Court in W.A.No.383/2019 disposed of on 03.06.2019 held as hereinbelow.
"6. The law is fairly well settled. Even if a statute does not provide for specific period of limitation for initiating the proceedings which will affect the civil right of the parties, the action has to be initiated within a reasonable time.38
7. We have carefully perused the recent decision of the Apex Court in the case of Sathyan (supra). We find that the Apex Court observed that in the facts of the case before it, there was a delay of eight years in invoking section 4 of the Act which will not come in the way of prosecuting the proceedings. In fact, the Apex Court distinguished its earlier decisions in the case of Manchegowda and Others vs. State of Karnataka and Others as well as in the case of Amrendra Pratap Singh Vs. Tej Bahadur Prajapati & Ors., on the ground that in the said cases, there was a huge gap of 20 to 22 years.
Thus, the Apex Court has not disturbed the law laid down in the earlier aforesaid decisions but distinguished the case in hand only on the basis of the fact that the delay was only of eight years. In the present case, delay is about fifty five years. The application for restoration of the land was not made within a reasonable time. We, therefore, find no error in the view taken by the learned Single Judge as in view of such a long delay, it cannot be said that proceedings were initiated within a reasonable time. Hence, there is no merit in this appeal and it is dismissed."
3919. Therefore, the contention of the respondents that there is no delay in invoking the provisions of the PTCL Act is unsustainable. In view of the above, the impugned order passed by the Deputy Commissioner is unsustainable and is liable to be quashed.
20. Accordingly, writ petition is allowed. The impugned order dated 10.10.2011 passed by the Deputy Commissioner vide Annexure-A is quashed.
In view of disposal of the main petition the pending IA does not survive for consideration.
Sd/-
JUDGE Cm/-