Smt Sharadabai vs The Deputy Commissioner
2021 Latest Caselaw 5473 Kant

     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.19759 OF 2013 (SC - ST)
BETWEEN:

1.     SMT. SHARADABAI
       W/O LATE RAMACHANDRA NAIK
       AGED ABOUT 57 YEARS
       R/AT MALAPURA, MADHUKALE HOBLI
       HOSADURGA TALUK
       CHITRADURGA DISTRICT-577527.
                                        ...PETITIONER

(BY SRI. R.YATEESH KUMAR, ADVOCATE)

AND:

1.     THE DEPUTY COMMISSIONER
       CHITRADURGA DISTRICT
       CHITRADURGA-577527

2.     THE ASSISTANT COMMISSIONER
       HOSADURGA TALUK
       CHITRADURGA DISTRICT-577527

3.     MRS. ZARINAKHAN
       W/O ZAKHAULLAH, MAJOR
       C/O MOHAMED SHAMIULLA
       NO.32/1, MARAPPA BLOCK
       J.C.NAGAR, BANGALORE-560001
                                    ...RESPONDENTS
(BY SMT. H.C.KAVITHA, ADV FOR R1 & R2,
 WP DISMISSED AGAINST R3 V/O DTD. 06.06.2016)
                                 2




     THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 30.5.2012 VIDE ANNEXURE-C PASSED
BY RESPONDENT NO.1.

     THIS WRIT PETITION COMING ON FOR HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

The petitioner being aggrieved by the order dated

30.05.2012 passed by respondent No.1 vide Annexure-C,

has filed this writ petition.

2. Brief facts leading to filing of this writ petition

are that:

The land bearing Sy.No.305 of Malapura Village,

Madhukale Hobli, Hosadurga Taluk measuring 09 acres 28

guntas was granted in favour of Sri Deepla Naik on

15.05.1951. The petitioner claims to be the daughter-in-

law of Sri Deepla Naik. The father-in-law of the petitioner

was in possession and cultivation of the said land.

Sri Deepla Naik had raised loan from PCLDB Bank,

Hosadurga. On failure of the repayment of the loan

amount, the recovery certificate was issued and the

property was brought in the public auction. Respondent

No.3 has participated in the public auction and he was the

highest bidder and he has purchased the same in the

public auction held on 25.06.1970. After purchase of the

property, the said land was transferred in the name of

respondent No.3 in the revenue records. The petitioner has

filed an application under Section 5 of the Karnataka

Scheduled Castes and Scheduled Tribes (Prohibition of

Transfer of Certain Lands) Act, 1978 (for short 'the PTCL

Act') in the year 2003 stating that the sale transaction is

contrary to Section 4 (1) of the PTCL Act. Respondent No.2

after enquiry, has passed an order and allowed the

application filed by the petitioner and declared the

registered sale deed as null and void and ordered for

resumption of land vide order dated 15.10.2004.

3. Respondent No.3 being aggrieved by the order

passed by respondent No.2, preferred an appeal before

respondent No.1. Respondent No.1 on re-appreciation of

material on record, allowed the appeal and set aside the

order passed by respondent No.2. The petitioner being

aggrieved by the order passed by respondent No.1, has

filed this writ petition.

4. Though the writ petition was filed against the

purchaser/R3, the petitioner has not taken steps against

the purchaser/R3. The writ petition came to be filed

dismissed respondent No.3 vide order dated 16.06.2016.

5. Heard the learned counsel for the petitioner

and also learned HCGP for respondent Nos.1 and 2.

6. Learned counsel for the petitioner submits that

the land in question is a granted land and the provisions of

the PTCL Act applies. He further submits that the Assistant

Registrar of Co-operative Society has committed an error

in auctioning the property in question. He further submits

that the said sale is contrary to Section 4(1) of the PTCL

Act. He submits that respondent No.1 has committed an

error in passing the impugned order. Hence, on these

grounds, he prays to allow the writ petition.

7. Per contra, learned HCGP supports the

impugned order.

8. Heard and perused the records and considered

the submissions of learned counsel for the parties.

9. The land in question was granted in favour of

Sri Deepla Naik on 15.05.1951. The said Sri Deepla Naik

obtained a loan from PCLDB Bank, Hosadurga. The said

Sri Deepla Naik could not repay the loan amount to the

bank. The said property was mortgaged in favour of the

bank. The said bank filed a recovery proceedings against

Sri Deepla Naik and a decree was passed. Thereafter, the

execution petition was filed. In the execution petition, the

said land was put in auction. In the said public auction,

respondent No.3 has purchased the property on

25.06.1970. After lapse of more than 33 years, the

petitioner who claims to be daughter-in-law of

Sri Deepla Naik has filed an application under Section 5 of

the PTCL Act. As on the date of filing of the application

under Section 5 of the PTCL Act, Sri Deepla Naik was alive.

He died on 10.08.2004. The said Sri Deepla Naik accepted

the execution of the registered sale deed in favour of

respondent No.3. He has not challenged the said

registered sale deed executed in favour of respondent No.3

during his lifetime. The said application was filed after

lapse of 33 years from the date of public auction. Thus,

there is an inordinate delay in filing the application.

10. In view of the law laid down 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."

11. 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."

12. The application filed by the petitioner is beyond

reasonable time. Respondent No.1 was justified in allowing

the appeal filed by respondent No.3. Respondent No.2

ought to have rejected the application filed by the

petitioner solely on the ground of delay and laches.

Respondent No.2 has allowed the application, which is

contrary to the law laid down by the Hon'ble Apex Court in

Nekkanti Rama Lakshmi (supra). In view of the above

discussion, I do not find any ground to interfere with the

impugned order.

Accordingly, the writ petition is dismissed.

Sd/-

JUDGE ssb