Halamma vs The Deputy Commissioner
2021 Latest Caselaw 5809 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 9TH DAY OF DECEMBER 2021

                    BEFORE

    THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

   WRIT PETITION NO.3566 OF 2020 (SC-ST)

BETWEEN:

1 . HALAMMA
    W/O LATE ESHWARAPPA,
    AGED ABOUT 70 YEARS

2 . KAVITHA
    D/O LATE ESHWARAPPA,
    AGED ABOUT 40 YEARS

3 . SHOBHA
    D/O LATE ESHWARAPPA,
    AGED ABOUT 39 YEARS

4 . BASAVANAGOWDA
    S/O LATE ESHWARAPPA,
    AGED ABOUT 36 YEARS

5 . SAVITHA
    D/O LATE ESHWARAPPA,
    AGED ABOUT 34 YEARS,

6 . SUMA
    D/O LATE ESHWARAPPA,
    AGED ABOUT 32 YEARS
                            2




     ALL ARE R/O ITTIGEHALLI VILLAGE,
     HOLEHONNUR HOBLI,
     BHADRAVATHI TALUK,
     SHIVAMOGGA DISTRICT - 577 245.
                                        ...PETITIONERS
(BY SRI. RAJAGOPAL M R., ADVOCATE)

AND:

1.     THE DEPUTY COMMISSIONER
       SHIVAMOGGA DISTRICT
       SHIVAMOGGA - 577 201.

2.     THE ASSISTANT COMMISSIONER
       SHIVAMOGGA SUB DIVISION,
       SHIVAMOGGA - 577 201.

3.     THE TAHSILDAR
       BHADRAVATHI TALUK,
       BHADRAVATHI,
       SHIVAMOGGA DISTRICT.

       KOLLAMMA
       W/O LATE HANUMANTHAPPA
       DEAD BY L.RS.

4.     MANJUNATHA
       S/O RAMA BOVI,
       AGED ABOUT 40 YEARS,
       R/O HOSUDI VILLAGE,
       NIDIGE HOBLI,
       SHIVAMOGGA TALUK AND DISTRICT - 577 245.

5.     BHAGYAMMA
       W/O DANAPPA,
       AGED ABOUT 45 YEARS,
       R/O ITTIGEHALLI VILLAGE,
       HOLEHONNUR HOBLI,
                          3




     BHADRAVATHI TALUK
     SHIVAMOGGA DISTRICT - 577 245.

6.   BASAVARAJAPPA
     S/O HANUMANTHAPPA,
     AGED ABOUT 47 YEARS,
     R/O ITTIGEHALLI VILLAGE,
     HOLEHONNUR HOBLI,
     BHADRAVATHI TALUK,
     SHIVAMOGGA DISTRICT - 577 245.
                                      ....RESPONDENTS

(BY SRI. SANDESH KUMAR, HCGP FOR R-1 TO R-3
    SRI. SHAM RAO S., ADVOCATE FOR C/R-4 AND C/R-5
    R-6 SERVED AND UNREPRESENTED)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 31.01.2020 PASSED BY R-1
DEPUTY    COMMISSIONER,      SHIVAMOGGA   DISTRICT,
SHIVAMOGGA AS PER ANNEXURE-J AND ALSO THE ORDER
DATED    03.04.2012   PASSED    BY  R-2  ASSISTANT
COMMISSIONER         SHIVAMOGGA       SUB-DIVISION,
SHIVAMOGGA IN PROCEEDINGS AS PER ANNEXURE-H
AND CONSEQUENTLY DISMISS THE PROCEEDINGS
INITIATED   ON    THE    FILE   OF  R-2  ASSISTANT
COMMISSIONER.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                    ORDER

The petitioners being aggrieved by the order

dated 04.03.2012, passed by respondent No.2 vide

Annexure-H and also order dated 31.01.2020, passed

by respondent No.1 vide Annexure-J, have filed this

writ petition.

2. Brief facts leading rise to filing of this petition

are as under:

That land in old Sy.No.55, Block No.1, new

Sy.No.114 of Ittigehalli Village, Holehonnur Hobli,

Bhadravathi Taluk, Shivamogga District, measuring 4

acres was granted in favour of Sri.Hanumanthappa

under grant order dated 02.02.1955 and a grant

certificate was issued. The original grantee namely

Hanumanthappa sold the said land in favour of

grandfather of petitioner under registered sale deed

dated 21.07.1967. On the strength of the said

registered sale deed, the land was transferred in the

name of grandfather of petitioners. Respondent No.3

submitted a report dated 15.06.1982, to the effect

that the said sale transaction is in violation of Section

4(2) of the Karnataka Scheduled Castes and the

Scheduled Tribes (Prohibition of Transfer of Certain

Lands) Act, 1978 ('the PTCL Act' for short).

Respondent No.2, on the report submitted by

respondent No.3, has initiated a suo moto proceedings

under Section 5 of the PTCL Act. Respondent No.2

passed an order to restore the land in favour of the

alleged legal representatives of original grantee vide

order dated 06.05.1987. The petitioners being

aggrieved by the order passed by respondent Nos.1

and 2, preferred a writ petition in W.P.No.1436/1989.

This Court vide order dated 29.03.1989, allowed the

writ petition and remitted the matter to respondent

No.1. The respondent No.1, after remand, conducted

an enquiry and passed an order dated 17.06.1999,

dismissing the appeal. The petitioners being

aggrieved by the order passed by respondent No.1,

preferred a writ petition in W.P.No.41066/1999. This

Court, vide order dated 30.03.2000, allowed the writ

petition and remitted the matter to respondent No.1.

On remand, respondent No.1 has passed an order

remitting the matter to respondent No.2, vide order

dated 30.10.2003. On remand by respondent No.1,

respondent No.2 has passed an order to resume the

land in favour of the legal representatives of original

grantee vide order dated 03.04.2012. The petitioners

being aggrieved by the said order passed by

respondent No.2, preferred an appeal before

respondent No.1. Respondent No.1, vide order dated

31.01.2020, dismissed the appeal and confirmed the

order passed by respondent No.2. Hence this petition

challenging the orders passed by respondent Nos.1

and 2.

3. Heard learned counsel for the petitioners,

learned HCGP for respondent Nos.1 to 3 and learned

counsel for the respondent Nos.4 and 5.

4. Learned counsel for the petitioners submits

that though the land was granted in the name of

Hanumanthappa, he sold the said land in favour of

grandfather of petitioners under registered sale deed

dated 21.07.1967. He further submits that the PTCL

Act came into force on 01.01.1979. Respondent No.3

submitted a report to respondent No.2 alleging that

the sale transaction is in violation of Section 4 of the

PTCL Act. He further submits that after a lapse of

more than 15 years from the date of execution of

registered sale deed, the respondent No.2 has

initiated a suo moto proceedings on the basis of report

of respondent No.3. He submits that there is a delay

of 15 years in initiating the PTCL proceedings. In

support of his contention he has placed reliance on the

judgment of Hon'ble Apex Court in the case of

NEKKANTI RAMA LAKSHMI VS. STATE OF KARNATAKA &

ANR. [(2020) 14 SCC 232] AND VIVEK M. HINDUJA &

ORS. VS. M. ASHWATHA & ORS. [(2020) 14 SCC 228].

Hence he submits that respondent No.2 ought to have

rejected the application on the ground of delay and

laches, on the contrary respondent No.2 has passed

an order to restore the land in favour of alleged legal

representatives of original grantee. He further

submits that even respondent No.2, without properly

considering the material on record, dismissed the

appeal. Hence he submits that the impugned orders

passed by respondent Nos.1 and 2 are contrary to the

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

aforesaid cases. He further submits that respondent

Nos.1 and 2 without properly appreciating the

material on record have passed the impugned orders.

Hence, on these grounds, he prays to allow the writ

petition.

5. Per contra, learned counsel for the

respondent Nos.4 and 5 submits that he land was

granted in the name of Hanumanthappa and grant

certificate was issued. He further submits that the

sale made in favour of grandfather of petitioner is in

violation of Section 4 of the PTCL Act. He further

submits that respondent No.2, after considering the

material on record, was justified in holding that the

sale transaction is in violation of Section 4 of the PTCL

Act. He further submits that respondent No.1, on re-

appreciation of the material on record, was justified in

confirming the order passed by respondent No.1.

Hence, on these grounds, prays to dismiss the writ

petition.

6. Learned HCGP supports the impugned orders.

7. Perused the records and considered the

submissions made by learned counsel for the parties.

8. It is not in dispute that the land in question

was granted in favour of one Hanumanthappa under

grant order dated 02.02.1955. The original grantee

had sold the said land in favour of grandfather of

petitioners under registered sale deed dated

21.07.1967. On the strength of the registered sale

deed, the property was transferred in the name of the

grandfather of petitioners. On 15.06.1982,

respondent No.3 submitted a report to respondent

No.2 alleging that the said sale transaction is in

violation of Section 4 of the PTCL Act. Respondent

No.2 initiated a suo moto proceedings under Section 5

of the PTCL Act and after enquiry, held that the sale

transaction is in violation of Section 4 of the PTCL Act

and passed an order of resumption of land to the legal

representatives of original grantee. The said order

was challenged by the petitioners before respondent

No.1. Respondent No.1 confirmed the order passed

by respondent No.2.

9. It is not in dispute that the property was sold

by the original grantee on 21.07.1967 under a

registered sale deed. The PTCL Act came into force on

01.01.1979. Respondent No.3 submitted the report in

the year 1982, after a lapse of more than 15 years

from the date of execution of registered sale deed.

The respondent No.2 without examining the said

aspect, has initiated PTCL proceedings. Respondent

No.2 without considering the point of limitation, has

proceeded to pass the impugned order. The

impugned orders passed by respondent No.1 and

respondent No.2 are contrary to the law laid down by

Hon'ble Apex Court in the case of NEKKANTI RAMA

LAKSHMI (SUPRA) wherein Hon'ble Apex Court has held

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."

10. In view of the law laid down by the Hon'ble

Apex Court in the above referred case, the

proceedings initiated by respondent No.2 is beyond

reasonable time. No explanation has been offered by

respondent no.2 for initiating the proceedings under

the PTCL Act after a lapse of 15 years. Thus, the

proceedings initiated by respondent No.2 is beyond

reasonable time. Hence, on this ground alone, the

writ petition is liable to be allowed. Accordingly, I

proceed to pass the following:

ORDER

The writ petition is allowed.

The impugned order dated 31.01.2020 vide Annexure-J, passed by respondent No.1 and the order dated 03.04.2012 vide Annexure-H, passed by respondent No.2, are hereby quashed and set aside.

SD/-

JUDGE

RD