Karnataka High Court
M/S Shipra Estate Limited vs The Assistant Commissioner on 30 January, 2018
Author: B.S.Patil
Bench: B.S.Patil
WP.24501/2012
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.24501/2012 (SC-ST)
BETWEEN
M/s SHIPRA ESTATE LIMITED,
REP.BY ITS DULY AUTHORIZED
SIGNATORY AND HEAD RETAIL AND
FEC: SHRI ROHIT BHASIN
S/O LATE N.M.BHASIN,
NO.D32, MAIN VIKAS MARG,
LAKSHMI NAGAR, NEW DELHI 110 092,
REP.BY GPA HOLDER-
SRI RAJ SINGH S/O LATE JAI KARAN SINGH,
AGED ABOUT 46 YEARS. ... PETITIONER
(By Sri JAYAKUMAR S.PATIL, SR.COUNSEL FOR
Sri SRIHARI A.V., ADV.)
AND
1. THE ASSISTANT COMMISSIONER,
BANGALORE NORTH SUB DIVISION
BANGALORE.
2. THE TAHSILDAR
BANGALORE NORTH (ADDL.)TALUK
BANGALORE.
3. SRI K. MAHESH
S/O K. RAJAGOPAL
MAJOR
R/O KUDUVATHI VILLAGE,
NANDI HOBLI, TALUK AND DISTRICT,
CHICKABALLAPUR.
4. M/s QUEENS CITY DEVELOPERS PVT. LTD.,
BY K.S.THOMAS
WP.24501/2012
2
NO.834, B.D.A.QUARTERS
AUSTIN TOWN
BANGALORE-560 047.
5. THE DEPUTY COMMISSIONER
BANGALORE DISTRICT
BANGALORE.
6. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY
DEPARTMENT OF REVENUE
M.S.BUILDING,
BANGALORE-560 001.
7. SMT.SHASHIKALA
W/O LATE N.H.SHIVAMURTHY
AGED ABOUT 52 YEARS
8. DEEPTHI MURTHY
D/O LATE N.H.SHIVAMURTHY
AGED ABOUT 24 YEARS
BOTH R/AT NO.54,
SUPRABHATHA TEACHERS COLONY,
NAGARBHAVI, BANGALORE. ... RESPONDENTS
(AMENDED V/C/O DT.11.9.2013)
(By Sri D.ASHWATHAPPA, AGA FOR R1, R2, R5 & R6)
Sri R.V.SRINIVASA REDDY, ADV. FOR R3;
Smt.DIVYA KRISHNA, ADV. FOR R7 & R8;
R4- SERVED & UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO (a) DECLARE THAT
THE KARNATAKA SCHEDULED CASTE AND SCHEDULED TRIBE
(PROHIBITION OF TRANSFER OF CERTAIN LANDS) ACT, 1978, HAS
NO APPLICATION IN RESPECT OF THE TRANSFER MADE AFTER
THE COMMENCEMENT OF THE ACT WHEREIN THE NON-
ALIENATION PERIOD HAS EXPIRED PRIOR TO THE
COMMENCEMENT OF THE SAID ACT; (b) QUASH THE ORDER
DTD.24.10.2007 PASSED BY THE R1 IN CASE NO.K.SC.ST.60/2005-
06 VIDE ANNEX-B; (c) QUASH THE ORDER DTD.24.5.12 PASSED BY
THE R5 IN CASE NO.SC.ST(A) 64/2009-10 VIDE ANNEX-A, AND
ETC.
WP.24501/2012
3
THIS PETITION COMING ON FOR FINAL HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. This writ petition is filed challenging the order dated 24.10.2007 passed by the Assistant Commissioner, Bengaluru North Sub-Division, Bengaluru, in K.SC.ST.No.60/2005-06 confirmed by the Deputy Commissioner, Bengaluru District in SC.ST (Appeal) No.64/2009-10 vide order dated 24.05.2012.
2. Petitioner is the purchaser of 29 guntas of land comprised in Sy.No.7 of Chikkajala Village vide registered Sale Deed dated 23.06.2006 from M/s.Queen City Developers Private Limited - respondent No.4 herein. Respondent No.4 in turn purchased the property vide registered Sale Deed dated 26.12.1996 from one Sri Munegowda, s/o Sri Shamanna as is evident from Annexure-G. The said Munegowda in turn had purchased the property from the father (K.Rajagopal) and uncle (K.Jayaramaiah) of respondent No.3 - Sri K.Mahesh, who claimed to be the legal representative of original grantee, vide Annexure-E Sale Deed dated 22.06.1995. The land was originally granted to one K.Muniswamappa @ Muniswamaiah as per the Grant Certificate dated 14.05.1942. According to WP.24501/2012 4 respondent No.3, the grant was made with non-alienation condition of ten years.
3. It is contended by respondent No.3 that after the death of K.Muniswamaiah - the original grantee, his son Sri D.M.Kondappa Nayak succeeded to the property and his name was entered in the revenue record with effect from 20.07.1965. The said D.M.Kondappa Nayak died leaving behind two children
- K.Rajagopala and K.Jayaramaiah. Respondent No.3 is the son of K.Rajagopala. K.Rajagopala and K.Jayaramaiah together sold the land in question in favour of Munegowda vide Sale Deed dated 22.06.1995. Thereafter, the land has changed hands as narrated hereinabove.
4. It is further necessary to notice here that as is evident from Annexure-F order dated 03.01.2006, the land was converted for non-agricultural use vide order dated 28.11.1996 and by Annexure-F order, time was extended from 03.01.2006 for 2 years for utilizing the land for the purpose for which it was ordered to be converted.
5. Respondent No.3 herein made a claim before the jurisdictional Assistant Commissioner under Section 4 of WP.24501/2012 5 Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, 'the PTCL Act') seeking resumption and restoration of the land. This application was filed in the year 2005-06. The Assistant Commissioner registered the case as K.SC.ST No.60/2005-06 and passed an order dated 24.10.2007 vide Annexure-B thereby holding that as the Sale Deed had been executed in favour of Sri Munegowda on 22.06.1995 without taking prior permission of the State Government and as the land was a granted land, there was clear violation of the provisions of PTCL Act and hence, the same was liable to be set aside and the land be resumed to the Government. The Assistant Commissioner directed that the land shall be restored to the legal representative of original grantee. This order was challenged in appeal by the present petitioner M/s.Shipra Estate Limited as they had purchased the property vide registered Sale Deed dated 23.06.2006 - Annexure-J. The Appellate Authority - Deputy Commissioner has dismissed the appeal vide order dated 24.05.2012 thereby confirming the order passed by the Assistant Commissioner. In this background, petitioner being aggrieved by the orders passed by the Assistant Commissioner WP.24501/2012 6 and the Deputy Commissioner has filed the present writ petition.
6. The main contention urged by learned Senior Counsel appearing for petitioner is that both the authorities have failed to take note of the fact that proceedings had been initiated before the Assistant Commissioner under Sections 4 & 5 of PTCL Act after lapse of nearly 11 years from the date of sale made by the legal representatives of original grantee in favour of Munegowda. With regard to factual position, learned Senior Counsel contended that the land was not a 'granted land' inasmuch as the same was purchased in a public auction as was evident from Annexure-C - Saguvali Chit. It is his further contention that as already held by the Apex Court in the case of VIVEK M.HINDUJA & OTHERS Vs. M.ASHWATHA AND OTHERS (Civil Appeal No.2166/2009) and NEKKANTI RAMA LAKSHMI Vs. STATE OF KARNATAKA & ANOTHER (Civil Appeal No.1390/2009), even though no period of limitation is prescribed for initiating action for resumption and restoration of land under the provisions of PTCL Act, the authorities entrusted with the power to annul proceedings/Sale Deeds executed by the original grantees/their legal representatives must exercise their power to do so whether WP.24501/2012 7 on an application filed by them or by exercising suo motu power within a reasonable time. He has further placed reliance on the judgment of the Apex Court in the case of SANTHOSHKUMAR SHIVGONDA PATIL Vs. BALASAHEB TUKARAM SHEVALE AND OTHERS
- (2009) 9 SCC 352 to contend that the Apex Court has laid down fairly settled position of law that if a statute does not prescribe time limit for exercise of revisional power it does not mean that such power could be exercised at any time, rather it should be exercised within a reasonable time. He further points out by referring to paragraphs 11 & 12 of the said judgment that ordinarily reasonable period within which the power has to be exercised would be three years subject to exceptional circumstances. Though the said judgment arises under the provisions of the Maharashtra Land Revenue Code regarding revisional power of the revenue authority under Section 257 of the said Code, it is his contention that said well established principle of law recognized by the Apex Court is applicable to the powers to be exercised by the authorities invested with such powers under the provisions of different enactments.
7. Referring to the judgment of this Court in the case of SRI G.M.VENKATAREDDY & ANOTHER Vs. THE DEPUTY COMMISSIONER, KOLAR DISTRICT & OTHERS - ILR 2012 KAR 3168 which has been WP.24501/2012 8 rendered by considering the provisions of the Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, he points out that this judgment is no longer a good law in view of the judgments of the Apex Court in the case of VIVEK M.HINDUJA & OTHERS Vs. M.ASHWATHA AND OTHERS (Civil Appeal No.2166/2009) and NEKKANTI RAMA LAKSHMI Vs. STATE OF KARNATAKA & ANOTHER (Civil Appeal No.1390/2009). Indeed, learned Senior Counsel invites the attention of the Court to the discussion made by the Apex Court in Nikkanti Rama Lakshmi's case at paragraph 8 wherein the judgment in the case of NINGAPPA Vs. DEPUTY COMMISSIONER & OTHERS (C.A.No.3131/2007 decided on 14.11.2011 of the Apex Court has been referred and the position of law has been reiterated stating that it is a settled position in law that where statute provides no period of limitation, any provisions of the statute must be invoked within a reasonable time.
8. Learned counsel for respondent No.3 has contended that as the alienations made after the Act came into force are declared as void, particularly as per Section 4(2) of PTCL Act and an express statutory bar has been enacted stating that no person shall after the commencement of the Act, transfer or WP.24501/2012 9 acquire by transfer, any granted land without the previous permission of the Government and as the sale has been made after the Act came into force on 01.01.1979 without securing prior permission of the Government, the transaction in question itself was void and hence question of limitation for exercise of power by the authorities to annul such sale transaction would not arise.
9. Indeed, the above question has been also considered by the Apex Court in the judgment rendered in VIVEK M.HINDUJA's case in Civil Appeal No.2166/2009. In paragraphs 8, 9 and 10, the Apex Court has observed as under:
"8. It was also submitted on behalf of the respondents that Section 4 of the Karnataka Act proprio vigore annuls a transfer made in contravention of itself. Therefore, it makes no difference if the proceedings are initiated even after 20 to 25 years.
9. We do not find it possible to accede to this submission. This court in the case of Board of Trustees of Port of Kandla Vs. Hargovind Jasraj and Anr., reiterated the necessity of an order of a competent Court or Tribunal before which the impugned order can be declared as null and void. The Court relied on the oft- quoted passage in Smith Vs. East Elloe Rural District Council, which reads as under:WP.24501/2012 10
"... An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.
(Smith Case, AC pp. 769-70) (emphasis supplied) This must be equally true even where the brand of invalidity is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed out (sic) repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects (Ed. Wade and Forsyth in Administrative Law, 7th Edn. 1994."
In the case of Pune Municipal Corporation Vs. State of Maharashtra, this Court reproduced the following observation with regard to the declaration of orders beyond the period of limitation as invalid:
"39. Setting aside the decree passed by all the courts and referring to several cases, this court held that if the party aggrieved by invalidity of the order intends to approach the court for declaration that the order against him was inoperative, he WP.24501/2012 11 must come before the court within the period prescribed by limitation. 'If the statutory time of limitation expires, the court cannot give the declaration sought for'.
(emphasis supplied)"
10. Thus, it is clear that even where the statute has declared a transaction as null and void, it was necessary that a declaration has to be obtained to the effect that such a transaction was null and void because even where an order is passed without authority it does not bear the brand of invalidity on its forehead, unless necessary proceedings is taken by law to establish the cause of invalidity to get it quashed or otherwise upset. Until then the same would remain as effective. Therefore, in order to annul the transaction based on the provisions contained under Sections 4 & 5 of PTCL Act, the party claiming benefit must initiate proceedings within a reasonable period. In the instant case, first sale has taken place on 22.06.1995. Thereafter, property has changed hands and there was an order of conversion of land from agricultural to non-agricultural. Almost after lapse of 11 years and during the year 2005-06, the legal representative of deceased original grantee instituted the proceedings seeking to annul the Sale Deed.
WP.24501/201212
11. In the above circumstances, as rightly contended by learned Senior Counsel appearing for petitioner, a period of 11 years for initiating action cannot be termed as reasonable period within which the authority has exercised power to entertain the claim and annul the transaction. Even though no period of limitation is prescribed, beneficiary who wants resumption of the land and restoration of same unto himself ought to have approached the Court within a reasonable period. The Assistant Commissioner and the Deputy Commissioner, having failed to take note of this important fact while exercising their power to annul the sale transaction, have committed apparent illegality. Therefore, order passed by both the authorities suffer from patent illegality and are unsustainable in law. Hence, the writ petition is allowed. Impugned orders are set aside.
Sd/-
JUDGE PKS