Karnataka High Court
Sri. Devadasa vs State Of Karnataka on 4 December, 2021
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE ASHOK.S.KINAGI
WRIT PETITION NO.5444 OF 2020 (SC - ST)
BETWEEN:
SRI. DEVADASA.
AGED ABOUT 55 YEARS
S/O LATE ODI MUGERA
R/AT KADAMBALA, MIYAR VILLAGE
KARKALA TALUK
UDUPI DISTRICT-574 104
...PETITIONER
(BY SRI. K.PRASANNA SHETTY, ADVOCATE)
AND:
1. STATE OF KARNATAKA, REP.BY
ITS SECRETARY, REVENUE DEPARTMENT
M.S.BUILDING,
DR.AMBEDKAR VEEDHI,
BENGALURU-560 001.
2. THE ASSISTANT COMMISSIONER
KUNDAPURA SUB-DIVISION
KUNDAPURA,
UDUPI DISTRICT-576 201
3. THE DEPUTY COMMISSIONER,
UDUPI DISTRICT,
RAJATHADRI, MANIPAL
UDUPI DISTRICT-576 104
2
4. SRI. SHASHIDHARA
AGED ABOUT 44 YEARS
S/O LATE ODI MUGERA
MIYAR VILLAGE
KARKALA TALUK
UDUPI DISTRICT-574 104.
...RESPONDENTS
(BY SMT. H.C.KAVITHA, HCGP FOR R1 TO R3,
R4- SERVED UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DTD: 09.12.2019 PASSED BY THE
DEPUTY COMMISSIONER, UDUPI DISTRICT i.e., THE R-3
HEREIN ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRILIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner being aggrieved by the order dated
09.12.2019 passed by respondent No.3 vide Annexure-A
and order dated 07.03.2018 passed by respondent No.2
vide Annexure-B, has filed this writ petition.
2. Brief facts leading to filing of this writ petition
are that:
The petitioner claims to be the absolute owner in
possession and enjoyment of the land in Sy.No.448/3C
measuring 0.54 acres of Miyar Village, Karkala Taluk. The
said property was granted on Darkasth to the father of the
petitioner in the Darkasth Proceedings dated 05.06.1963.
The father of the petitioner intended to make some
arrangement for future life of the petitioner as the
petitioner was dependent on him. The father of the
petitioner executed a registered settlement deed on
29.07.1999 with respect to the land in question and the
petitioner has been in actual possession and enjoyment of
the said property. On the strength of the settlement deed,
the name of the petitioner was entered in the revenue
records. Out of 54 acres, an extent of 0.04 acre was
converted into non-agricultural residential purpose. The
petitioner has constructed a house in the said plot.
Respondent No.1 who is the younger brother of the
petitioner and has been in inimical terms with the
petitioner, filed an application under Section 5 of the
Karnataka Scheduled Castes and Scheduled Tribes
(Prohibition of Transfer Certain Lands) Act, 1978 (for short
'the PTCL Act'). Respondent No.2 has allowed the
application filed by respondent No.4 and passed an order
to cancel the settlement deed and also mutated the entries
in the name of the petitioner. The petitioner being
aggrieved by the order passed by respondent No.2
preferred an appeal before respondent No.3. Respondent
No.3 vide order dated 09.12.2019, dismissed the appeal
upholding the order passed by respondent No.2. The
petitioner being aggrieved by the order passed by
respondent No.3, has filed this writ petition.
3. Heard the learned counsel for the petitioner
and also learned HCGP for respondent Nos.1 to 3.
4. Notice was issued to respondent No.4. Inspite
of service of notice, respondent No.4 has remained absent.
5. Learned counsel for the petitioner submits that
the settlement deed comes on transfer or alienation of the
granted land. He further submits that the father of the
petitioner had made some arrangement in the family and
the said property was given to the petitioner under a
registered settlement deed executed on 29.07.1999.
Respondent No.4 after lapse of more than 18 years filed an
application under Section 5 of the PTCL Act. He further
submits that the application filed by the petitioner in
beyond reasonable time. He further places reliance on the
judgments of the Hon'ble Apex Court in the case of
Nekkanti Rama Lakshmi vs State of Karnataka and
another reported in 2018(1) Kar.L.R 5 (SC) and in the
case of Vivek M. Hinduja and others vs M. Ashwatha
and others reported in 2018(1) Kar.L.R. 176 (SC).
Hence, on these grounds, he prays to allow the writ
petition.
6. Per contra, learned HCGP supports the
impugned order.
7. Heard and perused the records and considered
the submissions of learned counsel for the parties.
8. The land in question was granted in favour of
the father of the petitioner in the year 05.06.1963. The
petitioner was depending on the father of the petitioner.
The father of the petitioner has distributed the property
amongst the family members under a registered
settlement deed dated 29.07.1999. In order to consider
whether the settlement deed amounts to a transfer of the
property in the eye of law. In order to consider the said
point, it is necessary to consider the definition of
settlement as described under Section 2(24) of the Indian
Stamp Act, 1899 (for short 'the Act, 1899'). The
Settlement means "any non-testamentary disposition, in
writing, of movable or immovable property made--
(a) in consideration of marriage,
(b) for the purpose of distributing property of the
settler among his family or those for whom he desires to
provide, or for the purpose of providing for some person
dependent on him, or
(c) for any religious or charitable purpose;
and includes an agreement in writing to make such a
disposition [and, where, any such disposition has not been
made in writing, any instrument recording, whether by
way of declaration of trust or otherwise, the terms of any
such disposition]."
9. From perusal of the definition, the settlement
does not amounts to transfer or alienation. When the
settlement is not a transfer as per the definition of the
settlement, it provides for distributing the property among
the members of the family and for any religious or
charitable purpose or in consideration of marriage. In the
present case, the petitioner has specifically submitted in
the petition that the petitioner was depending on the
father of the petitioner. The father of the petitioner
distributed the property amongst the family members by
way of settlement. The settlement is for no consideration.
It is made out of love and affection. In my opinion, the
settlement cannot be considered as a transfer. As per
Section 3(e) of the PTCL Act transfer means "a sale, gift,
exchange, mortgage (with or without possession), lease or
any other transaction not being a partition among
members of the family or a testamentary disposition and
includes creation of a charge or an agreement to sell,
exchange, mortgage or lease or enter into any other
transaction". The settlement deed does not fall within the
definition of Section 3(e) of the PTCL Act. The word
transfer is not completed nor can be applied to a
transaction covered by the settlement. Hence, the
provision of PTCL Act is not applicable to the settlement
deed. Respondent Nos.2 and 3 without considering the
said aspect, has proceeded to pass the impugned orders.
Thus, the impugned orders passed by respondent Nos.2
and 3 are contrary to the provisions of the Act, 1899.
10. Second ground of the argument of the learned
counsel for the petitioner submits that even on the ground
of delay and laches, respondent Nos.2 ought to have
rejected the application. The father of the petitioner has
executed a registered sale deed dated 29.07.1999 and
respondent No.4 has filed an application in the year 2016
i.e., after lapse of more than 18 years from the date of
execution of the settlement deed. The application filed by
respondent No.4 is beyond reasonable time.
11. In view of the law laid by the Hon'ble Apex
Court in the case of Nekkanti Rama Lakshmi (supra), it
is observed in para No.8 which reads as under:
"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 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."
12. In view of the law laid by the Hon'ble Apex
Court in the case of Vivek M. Hinduja (supra), it is
observed in para No.10 which reads as under:
"We are in respectful agreement with the
aforesaid observations. It is, however,
necessary to add that where limitation is not
prescribed, the party ought to approach the
competent Court or authority within reasonable
time, beyond which no relief can be granted.
As decided earlier, this principle would apply
even motuactions."
13. The application shall be filed within a
reasonable time. In the present case, respondent No.4 has
filed an application after lapse of more than 18 years from
the date of execution of settlement deed. Thus, there is an
inordinate delay in filing the application under Section 5 of
the PTCL Act. In view of the law laid by the Hon'ble Apex
Court, the application is filed beyond reasonable time.
14. In view of the above discussion, I proceed to
pass the following:
ORDER
1. Writ petition is allowed;
2. The impugned order passed by respondent
No.3 dated 09.12.2019 vide Annexure-A
and the impugned order passed by
respondent No.2 dated 07.03.2018 vide
Annexure-B are set aside and quashed.
Sd/-
JUDGE
ssb
