Karnataka High Court
Major General K S Kali Prasad (R) vs The Assistant Commissioner on 15 June, 2023
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NC: 2023:KHC:20596
WP No. 16960 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.16960 OF 2022 (SC-ST)
BETWEEN:
1. MAJOR GENERAL K S KALI PRASAD (R)
S/O LATE K SATYANARAYANA RAO
AGED ABOUT 71 YEARS
RESIDING AT
NO.78, 4TH CROSS D ENCLAVE
KODIGEHALLI MAIN ROAD
SAHAKAR NAGARA POST
BENGALURU - 560 092
ADDRESS WRONGLY STATE IN
THE IMPUGNED ORDER AS
C/O DR.K.S. CHANDRAMOULI
NO.464, 13TH CROSS
VYALIKAVAL
Digitally BENGALURU - 560 003
signed by
CHAITHRA A 2. JAYANTHI
Location:
HIGH W/O C G NAIK
COURT OF AGED ABOUT 67 YEARS
KARNATAKA RESIDING AT
NO.55/261, JAYANTHI NILAYA
JANATHA COLONY
DODDAKANAHALLI
CARMELARAM POST
BENGALURU-560 035
ADDRESS WRONGLY STATED IN
THE IMPUGNED ORDER AS
NO.3467, 13TH A MAIN
HAL 2ND STAGE
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WP No. 16960 of 2022
INDIRANAGAR
BENGALURU - 560068
3. KRISHNA
S/O ANNI
AGED ABOUT 56 YEARS
NO.260, JANATHA COLONY
DODDAKANAHALLI
CARMELARAM POST
BENGALURU -560 035
ADDRESS WRONGLY STATED IN
THE IMPUGNED ORDER AS
NO.185, 5TH SECTOR
HSR LAYOUT
KORAMANGALA
BENGALURU-560 034
4. S. GEETHA
D/O G.SIDDABASAVA
AGED ABOUT 50 YEARS
RESIDING AT
NO.141, 4TH BLOCK
14TH MAIN, KORAMANGALA
BENGALURU-560 034
5. MADHUKARA SHETTY
S/O NARAYANA SHETTY
AGED ABOUT 43 YEARS
RESIDING AT
NO.260, JANATHA COLONY
DODDAKANAHALLI
CARMELARAM POST
BENGALURU-560 035
ADDRESS WRONGLY STATED IN
THE IMPUGNED ORDER AS
NO.2, 1ST A CROSS
PAPPANNA LAYOUT
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WP No. 16960 of 2022
V. NAGENAHALLI
BENGALURU - 560 039
...PETITIONERS
(BY SRI. SRUTI C CHAGANTI, ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER
BENGALURU NORTH SUB-DIVISION
K G ROAD
BENGALURU - 560 009
2. THE TAHSILDAR
BENGALURU EAST TALUK
DURAVANI NAGAR
KRISHNARAJAPURAM
BENGALURU - 560 036
3. L PRAKASH
S/O LATE LAKSHMAIAH
AGED ABOUT 43 YEARS
4. USHA
W/O LATE P KRISHNAPPA
AGED ABOUT 55 YEARS
5. GOWTHAM K
S/O LATE P KRISHNAPPA
AGED ABOUT 26 YEARS
6. PREETHAM K
S/O LATE P KRISHNAPPA
AGED ABOUT 20 YEARS
RESPONDENT NOS.3 TO 6 ARE
ALL RESIDENTS OF
DODDAKANNAHALLI VILLAGE
VARTHURU HOBLI
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WP No. 16960 of 2022
CARMELARAM POST
BENGALURU -560 035
...RESPONDENTS
(BY SRI.VENKATASATHYA NARAYANA, HCGP FOR R.1 AND R.2;
SRI.H.K.PAVAN, ADVOCATE FOR R.3
NOTICE TO R.4 TO R.6 IS D/W V/O/D 15.06.2023)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DTD 23.06.2022 PASSED BY R1 IN PROCEEDING BEARING
NO.K.SC.ST(BE).07/2019 PRODUCED AS ANNEXURE-A AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by helpless petitioners - purchasers feeling aggrieved by the order of restoration passed by respondent No.1 - Assistant Commissioner, who has allowed the petition filed by respondent No.3 under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (for short "PTCL Act") and has ordered for restoration of the granted land -5- NC: 2023:KHC:20596 WP No. 16960 of 2022 on the premises that the alienations are found to be in contravention of the PTCL Act.
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 another1 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 "PTCL Act"
had an occasion to examine the point of limitation wherein interested person can file appropriate application seeking annulment of sale as void under Section 4 of the PTCL Act. The Apex Court by reiterating the principles laid down in 1 (2020) 14 SCC 232 2 (2019) 1 Kant LJ 819 SC -6- NC: 2023:KHC:20596 WP No. 16960 of 2022 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 application itself was not maintainable since the same was not filed within a reasonable time. While recording the 3 (2018) 12 SCC 527 4 (2020) 14 SCC 236 -7- NC: 2023:KHC:20596 WP No. 16960 of 2022 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. Facts leading to the case are as under; In the instant case, the land in question was granted by the Authorities to one Lakshmaiah s/o Poojappa in the year 1978-79. After his demise, his widow by name Ammayamma and her two sons sold land bearing Sy. No.9 measuring 20 guntas to one P.Krishnappa under registered sale deed dated 25.01.1995. The said P.Krishnappa, in turn, sold 4.8 guntas of land in favour of petitioner No.1 under registered sale deed dated 05.08.1998, 4.8 guntas of land in favour of petitioner No.2 under registered sale deed dated 24.09.1998, 4.8 guntas of land in favour of -8- NC: 2023:KHC:20596 WP No. 16960 of 2022 petitioner No.3 under registered sale deed dated 20.11.1998, 4.8 guntas of land in favour of petitioner No.4 under registered sale deed dated 05.03.1999 and lastly, 4.8 guntas of land in favour of petitioner No.5 under registered sale deed dated 31.07.2013.
5. Respondent No.3, who claims to be son of original grantee - Lakshmaiah, initiated proceedings by submitting a petition to respondent No.1 - Assistant Commissioner under Section 5 of the "PTCL Act" seeking restoration alleging that alienations are in contravention of provisions of the "PTCL Act".
6. On receipt of notice, the present petitioners, who are subsequent purchasers, tendered their objections and in the objections, the petitioners brought to the notice of respondent No.1 - Assistant Commissioner that in view of inordinate delay of 24 years, in the light of the law laid down by the Hon'ble Apex Court in the case of Nekkanti Rama Lakshmi (cited above) and also in the case of -9- NC: 2023:KHC:20596 WP No. 16960 of 2022 Ningappa vs. Deputy Commissioner (cited above) and also Chhedi Lal Yadav vs. Hari Kishore Yadav5, the petition seeking restoration is liable to be rejected only on the ground of delay. The present petitioners herein have also placed on record the judgments of the Hon'ble Apex Court.
7. Respondent No.1 - Assistant Commissioner in the order under challenge, though indicated at para No.4 of the order that there is a delay of 24 years, by ignoring the law laid down by the Hon'ble Apex Court has proceeded to hold that petition land in question being a granted land is alienated in contravention of the provisions of "PTCL Act"
and therefore, the alienations being in contravention of Section 4 of the "PTCL Act", the legal heirs of grantee are entitled to seek restoration. Consequently, the petition is allowed.
5 (2018) 12 SCC 527
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NC: 2023:KHC:20596 WP No. 16960 of 2022
8. The purchasers, though could have availed remedy of appeal under Section 5A of the "PTCL Act", have knocked the doors of the Writ Court.
9. Learned counsel appearing for the petitioner has persuaded this Court to entertain the captioned writ petition. While answering the Court question in regard to maintainability of the writ petition as the petitioners have efficacious remedy by way of an appeal under Section 5A of the "PTCL Act", she would place reliance on the judgment rendered by the Hon'ble Apex Court in the case of MAGADH SUGAR AND ENERGY LIMITED VS. STATE OF BIHAR AND OTHERS6. Referring to the judgments rendered by the Hon'ble Apex Court in the case of NEKKANTI RAMA LAKSHMI (cited above), she would point out that law is no more res-integra. The Hon'ble Apex Court in the catena of judgments has held that the petition seeking restoration has to be sought within a reasonable time. She would also bring to the notice of this 6 2021 SCC OnLine SC 801
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NC: 2023:KHC:20596 WP No. 16960 of 2022 Court that what would constitute a reasonable time is also dealt by this Court in catena of judgments bearing in mind the law laid down by the Hon'ble Apex Court. Therefore, she would point out that the present petitioners and their vendors, who acquired valid right and title and on account of passage of time, their rights are stood crystallized, therefore, their rights cannot be easily taken away under the garb of violations of provisions of "PTCL Act".
10. Heard learned counsel appearing for the petitioner and learned HCGP. I have given my anxious consideration to the law laid down by the Hon'ble Apex Court in the case of MAGADH SUGAR AND ENERGY LIMITED (cited above).
11. The right of a grantee seeking restoration of land alleging contravention of provisions of "PTCL Act" is given quietus by the Hon'ble Apex Court in the above cited judgments. The controversy relating to rights acquired by subsequent purchasers and if such rights have stood
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NC: 2023:KHC:20596 WP No. 16960 of 2022 crystallized by passage of time, is also given quietus by the Hon'ble Apex Court in the case of Chhedi Lal Yadav vs. Hari Kishore Yadav (cited above). Though Hon'ble Apex Court in the above cited judgments has laid a law in regard to right of grantees seeking restoration, this Court would find that the Authorities being Quasi Judicial Authorities are not following the law laid down by the Hon'ble Apex Court and orders are passed totally in contravention and violation of the law laid by the Hon'ble Apex Court.
12. This is one classic case, wherein respondent No.1 - Assistant Commissioner has an audacity to overlook and ignore the law laid down by the Hon'ble Apex Court. Respondent No.1 - Assistant Commissioner, without examining inordinate delay of 24 years in seeking restoration, has entertained the petition. It would be useful to refer para No.4 of the objection statement of the purchasers before respondent No.1 - Assistant Commissioner, which reads as under;
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NC: 2023:KHC:20596 WP No. 16960 of 2022 "4. Without prejudice to the other averments made herein, the petitioner has filed the above petition on 25.01.2019, after an inordinate delay of 24 years from the date of the sale to P.Krishnappa in 1995. No explanation is forthcoming in the petition for the unreasonable delay in presenting the petition. It is a well-settled principle of law that power under a statue must be exercised within a reasonable period of time as laid down by the Hon'ble Supreme Court in Chhedi Lal Yadav v. Hari Kishore Yadav (D) Thr. Lrs. 2017(6) SCALE 459, Ningappa v. Dy. Commissioner (C.A.No.3131 of 2007, decided on 14.07.2011), Nekkanti Rama Lakshmi v. State of Karnataka 2017 SCC OnLine SC 1862 and Vivek M. Hinduja and Others v. M.Ashwatha and Others (2020) 14 SCC 228. The petition is liable to be dismissed on this ground alone."
13. If petitioners have produced judgments and have brought to notice of respondent No.1 - Assistant Commissioner, he being a Quasi Judicial Authority is bound by law laid down by the Hon'ble Apex Court. The law in that regard is no more res-integra. The Hon'ble Apex Court
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NC: 2023:KHC:20596 WP No. 16960 of 2022 in the above cited judgments has held that where a statute does not provide for limitation, the Authorities and State must act consciously and if process of invoking provisions of statute is delayed and is initiated after long lapse of time, the delay by itself would act as an impediment.
14. Thus, without exception, they may come across various rules of law, the Hon'ble Apex Court has clearly stated that law in respect of exercise of powers/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. The Hon'ble Apex Court in the catena of judgments and the Division Bench of this Court have repeatedly held that the Authorities should not venture exercising jurisdiction and entertain restoration petition, if it is found that the grantee or his legal heirs have approached the Authorities with inordinate delay.
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15. It is unfortunate that though petitioners - purchasers have placed on record the judgments squarely applicable to the present case on hand, respondent No.1 - Assistant Commissioner has not even referred to the judgments. He has conveniently ignored the law laid down by the Hon'ble Apex Court in the judgments cited supra. Therefore, the order of restoration passed by respondent No.1 is not only capricious but the same is passed ignoring the principles laid down by the Hon'ble Apex Court. In that view of the matter, I am of the view that the order passed by respondent No.1 - Assistant Commissioner is not at all sustainable and the same is liable to be quashed.
16. In the facts and circumstances of the case, I am not inclined to relegate the petitioners to avail remedy of an appeal, which would further prejudice the rights of the petitioners. If law is settled and if the Authorities are consistently ignoring the judgments and passing cryptic and capricious orders, a bonafide purchaser, who has acquired valid right and title and whose rights stood
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NC: 2023:KHC:20596 WP No. 16960 of 2022 crystallized, has to be protected by this Court by exercising extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India.
17. Therefore, in the light of the principles laid down by the Hon'ble Apex Court in the case MAGADH SUGAR AND ENERGY LIMITED VS. STATE OF BIHAR AND OTHERS (cited supra), I am of the view that this Court can exercise jurisdiction in entertaining a writ petition as the order passed by respondent No.1 - Assistant Commissioner is found to be wholly without jurisdiction and in violation of the law laid down by the Hon'ble Apex Court on this point.
18. The principles laid down by the Apex Court in Chhedi Lal Yadav vs. Hari Kishore Yadav7 [(2018) 12 SCC 527] is also squarely applicable to the present case on hand. The land in question was granted by the Authorities to one Lakshmaiah s/o Poojappa in the year 1978-79. After his demise, his widow by name 7 (2018) 12 SCC 527
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NC: 2023:KHC:20596 WP No. 16960 of 2022 Ammayamma and two sons sold land to one P.Krishnappa under registered sale deed dated 25.01.1995. The said P.Krishnappa, in turn, sold 4.8 guntas of land in favour of petitioner No.1 under registered sale deed dated 05.08.1998, 4.8 guntas of land in favour of petitioner No.2 under registered sale deed dated 24.09.1998, 4.8 guntas of land in favour of petitioner No.3 under registered sale deed dated 20.11.1998, 4.8 guntas of land in favour of petitioner No.4 under registered sale deed dated 05.03.1999 and lastly, 4.8 guntas of land in favour of petitioner No.5 under registered sale deed dated 31.07.2013. The Hon'ble 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
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NC: 2023:KHC:20596 WP No. 16960 of 2022 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.
19. As far as the doctrine of precedent is concerned, it connotes the binding nature of precedents . The ground work of this doctrine has been laid down by article 141 of Indian constitution, as it provides that the law declared by the Supreme Court shall be binding on all courts and Quasi judicial authorities. substantially, in the case of UOI VS. RAGHUBIR SINGH8, it was held that " the judgment of decided cases is binding precedent and the same will operate as a binding precedent to all possible contingencies when a similar issue of law arise. The doctrine of Precedent as recognised under the Constitution 8 1989 AIR 1933
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NC: 2023:KHC:20596 WP No. 16960 of 2022 is an instrument of certainty, creativity and predictability of judicial interpretation. The High Court's Act as intermediary between the Supreme Court and subordinate courts/quasi judicial authorities. Division bench of this court as well as coordinate benches have been consistently following the law laid down by apex court in the case of Nekkanti and Vivek Hinduja (cited supra).
20. The law laid down by the Hon'ble Apex Court is no less important than the law laid down by the Parliament that should be scrupulously followed by the executive wing of the state. The Quasi judicial authorities are not following the law laid down by apex court as well as by this court. The Assistant commissioners and deputy commissioners are entertaining restoration petitions even though there is inordinate delay in seeking restoration. In the present case on hand, there is delay of 24 years. Ignoring delay and in violation of the law laid down by apex court, the restoration petitions are being entertained by the authorities. This tendency of revenue authorities in
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NC: 2023:KHC:20596 WP No. 16960 of 2022 not following the judgements of apex court, as well as this court deserves to be strongly condemned and deprecated by imposing exemplary cost on such authorities on account of such callous orders. The backbone of judiciary is already at stake and such orders are further aggravating and adding up pendency.
21. It is unfortunate, that notwithstanding the authoritative pronouncements by the apex court, and by this court, the authorities are passing orders contrary to law despite there being binding precedents . when a position of law is well settled , it is nothing short of contempt in not following the dictum laid down by the apex court. The judgments rendered by the Hon'ble Apex Court are produced by the purchasers. It is also indicated in the objections filed by the purchasers. Still Assistant commissioner has audacity to ignore the judgment rendered by the Hon'ble Apex Court. It's a conscious attempt to belittle the judgments rendered by apex court and also judgements rendered by this court as to what
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NC: 2023:KHC:20596 WP No. 16960 of 2022 constitutes a reasonable period. To say, the least, the order of restoration, is plainly perverse and amounts to gross contempt. This Court has been noticing that Quasi judicial authorities have scant respect for the orders passed by the Hon'ble Apex Court as well as by this Court. Therefore, this is a fit case where suitable direction is required to be issued to the concerned Deputy Commissioner to take appropriate action against the concerned Assistant Commissioner.
22. For the reasons stated supra, I pass the following;
ORDER
(i) The writ petition is allowed.
(ii) The order dated 23.06.2022 passed by respondent No.1/Assistant Commissioner bearing No.K.SC.ST(BE):07/2019 vide Annexure-A is hereby set aside.
(iii) The concerned Deputy Commissioner is directed to take suitable action against respondent No.1- Assistant Commissioner
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NC: 2023:KHC:20596 WP No. 16960 of 2022 and shall report compliance to the Registry of this Court.
(iv) Copy of this order shall be furnished to the learned HCGP to communicate the same to the concerned Authority.
(v) Pending applications, if any, are also disposed off.
Sd/-
JUDGE NBM List No.: 1 Sl No.: 5