Sri Srinivas Murthy vs State Of Karnataka
2021 Latest Caselaw 677 Kant

                             -1-


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 12TH DAY OF JANUARY, 2021

                          BEFORE

           THE HON' BLE MR.JUSTICE R DEVDAS

       WRIT PETITION NO.5604 OF 2018 (SC/ST)

BETWEEN

1.     SRI SRINIVAS MURTHY
       SINCE DEAD BY HIS LR'S,

1(a)   KEMPEGOWDA B S,
       S/O. SRI. LATE. SRINIVAS MURTHY,
       AGED ABOUT 41 YEARS,

1(b)   VINODKUMAR B S
       S/O. SRI. LATE. SRINIVAS MURTHY,
       AGED ABOUT 38 YEARS,

1(c) . TULASIRAM B S
       S/O. SRI. LATE. SRINIVAS MURTHY,
       AGED ABOUT 35 YEARS,

       ALL ARE R/AT NO. 79,
       BYATRANPURA GRAM,
       YELHANKA HOBLI,
       BANGALORE NORTH TALUK
                                          ...PETITIONERS
(BY SRI K S UDAY, ADVOCATE)

AND

1.     STATE OF KARNATAKA
       REP BY THE DEPUTY COMMISSIONER,
       CHIKKABALLAPUR,
       DISTRICT CHIKKABALLAPUR
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2.   THE ASSISTANT COMMISSIONER
     CHIKKABALLAPUR SUB DIVISION,
     DISTRICT CHIKKABALLAPUR

3.   SMT. VENKATANARSAMMA
     W/O. LATE. MUGAPPA,
     AGE: MAJOR,
     R/O. JATHAVARA,
     CHIKKABALLAPUR

4.   SIDDAPPA
     S/O. LATE. MUGAPPA,
     AGE: MAJOR,
     R/O. JATHAVARA,
     CHIKKABALLAPUR
                                              ...RESPONDENTS
(BY SMT SAVITHRAMMA, HCGP FOR R1 & R2
    SRI N K RAMESH, ADVOCATE FOR R3 & R4(NOC))

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 04.03.2011 PASSED BY RESPONDENT
NO.2 VIDE ANNEXURE-E AND ETC.


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

                            ORDER

R. DEVDAS J., (ORAL):

One Mugappa was granted 3 acres of land in

Sy.No.10/P60, situated at Balajigapade Village, Nandi Hobli,

Chikkaballapura Taluk on 29.10.1977. Respondent No.3 is the

wife of Late Mugappa, while respondent No.4 is the son of

Late Mugappa. The Saguvali chit was issued on 18.06.1984,

stipulating a non-alienation clause for a period of 15 years in

terms of the Karnataka Land Grant Rules, 1969. Violating the

said non-alienation clause, the said Mugappa sold the land in

favour of T.Nagabhushana on 14.09.1989. The said

T.Nagabhushana sold the land in favour of one Sri. Srinivas

Murthy, the father of the petitioners herein, on 05.02.1991.

2. Respondent Nos.3 and 4 herein filed an application

before the Assistant Commissioner, Chikkaballapura Sub-

Division, under Section 5 of the Karnataka Scheduled Castes

and Scheduled Tribes (Prohibition of Transfer of Certain

Lands) Act, 1978, which came into force in 1979, (hereinafter

referred to as 'PTCL Act', for short) for resumption and

restitution of the granted land in their favour. The Assistant

Commissioner proceeded to hold that the first sale has

happened in violation of the non-alienation clause and Section

4 (2) of the Act which would stipulate that any land granted to

a person belonging to Scheduled Castes and Scheduled Tribes

shall not be alienated without prior permission of the State

Government. Consequently, the sale transactions were set

aside and the land was ordered to be resumed and restored in

favour of the grantee or his legal heirs.

3. Sri.Srinivas Murthy, the father of the petitioners

herein preferred an appeal under Section 5A of the Act, before

the Deputy Commissioner, Chikkaballapura. The Deputy

Commissioner, by order dated 23.12.2013, dismissed the

appeal upholding the order passed by the Assistant

Commissioner. This writ petition was filed on 03.02.2018.

4. Learned Counsel for respondent Nos.3 and 4 raises a

preliminary objection that the writ petition having been filed

after a delay of more than 4 years, the same is required to be

dismissed on the ground of delay and laches.

5. Learned Counsel for the petitioners submits that the

father of the petitioners Sri. Srinivas Murthy passed away on

31.12.2013, i.e., a few days after the order was passed by the

appellate authority. It is submitted that the petitioners were

not aware of the proceedings before the appellate authority.

It is further submitted that the appellate authority did not

furnish a copy of the order and therefore, the petitioners were

not aware of the order passed by the appellate authority. It is

submitted that the petitioners filed an application seeking

certified copy of the order passed by the appellate authority

on 10.07.2017 and a copy of the order was furnished on

26.07.2017. A few months thereafter the writ petition has

been filed and therefore the writ petition is filed within

reasonable time. Learned Counsel submits that there is no

limitation prescribed for filing a writ petition and therefore

even if there is delay, the same is required to be considered

taking the factual aspects into consideration. It is also

submitted by the learned Counsel for the petitioners that the

application under Section 5 of the Act having been filed after a

lapse of more than 16 years, the Assistant Commissioner

should not have entertained the application itself. Moreover,

it is submitted that the Hon'ble Supreme Court in the case of

Nekkanti Rama Lakshmi Vs State of Karnataka and Another,

reported in 2017 SSC Online SC 1862, has held that the

application having been made approximately after 25 years of

the Act came into force, the Assistant Commissioner was

required to reject the application.

6. Per contra, learned Counsel for respondent Nos.3 and

4, submits that the question of going into the order passed by

the Assistant Commissioner and Deputy Commissioner would

arise only if the writ petition is admitted after consideration of

the question of delay and laches. The learned Counsel submits

that if the writ petition itself is not admitted and dismissed on

the ground of delay and laches, on the same principles as held

in the case of Nekkanti Rama Lakshmi which is relied upon by

the learned Counsel for the petitioners, then the question of

going into the merits of the matter does not arise.

7. Having heard the learned Counsels for the petitioners,

the learned HCGP for the respondent-authorities and having

perused the petition papers, this Court is required to answer

the question raised by the learned Counsel for respondent

Nos.3 and 4 as to whether the writ petition could be admitted

for consideration on merits or whether the writ petition is

required to be dismissed on the ground of delay and laches.

8. No doubt, there is no prescription of limitation for

filing the writ petition under Articles 226 or 227 of the

Constitution of India. However, in a catena of decisions,

including the decision of the Apex Court in the case of

Nekkanti Rama Lakshmi Vs. State of Karnataka (supra) which

was cited by the learned Counsel for the petitioners and other

judgment, such as Vivek M.Hinduja and Others Vs.

M.Ashwatha and Others reported in 2017 SCC OnLine SC

1858, the Apex Court has held that where there is no period

of limitation prescribed, a petition, be it under a statute or

under the writ jurisdiction, the same is required to be invoked

within a reasonable time. In this regard, attention of this

Court was drawn to the order sheet maintained by the Deputy

Commissioner, wherein it was pointed out that in the order

dated 18.02.2013, it has been recorded that the appellant's

Counsel and appellant's son were present before the authority.

This, is pointed out to counter the submission of the learned

Counsel for the petitioners who had submitted that the

petitioners were unaware of the proceedings initiated by their

father. The learned Counsel for the petitioners contends that

his submission was that the petitioners were not aware of the

Deputy Commissioner passing the order. It is submitted that

since the order was not communicated to the petitioners, they

were not aware of the fact that the Deputy Commissioner had

passed an order on the appeal filed by the petitioners father.

This submission too, is not appealing to the Court. When the

learned Counsel for the petitioners was called upon to point

out to any provision of the Act or the Rules, which would

require the authorities to communicate their orders to the

parties, the learned Counsel was not able to point out to any

such provision.

9. On the other hand, the learned Counsel for the

petitioners has pointed out that this writ petition was filed

consequent to the orders passed by the Hon'ble Apex Court in

the case of Nekkanti Rama Lakshmi. It is submitted that the

decision in the case of Nekkanti Rama Laxmi was passed on

26.10.2017 and the writ petition is filed in the month of

February 2018, trying to take advantage of the decisions

rendered by the Hon'ble Apex Court.

10. Be that as it may, as rightly submitted by the

learned Counsel for the respondent Nos.3 and 4, the question

as to whether the decisions in Nekkanti Rama Lakshmi and

other cases where the Hon'ble Apex Court has held that an

application filed under Section 5 of the Act before the

Assistant Commissioner after a prolonged delay should not be

entertained, is required to be gone into only if this writ

petition is admitted. At this juncture, since the learned

Counsel for respondents Nos.3 and 4 has convinced this Court

that there is absolutely no reason to accept the cause shown

for the delay in filing the writ petition, the question of going

into the merits of the matter would not arise. It is evident

from the material available on record that the petitioners were

aware of the proceedings before the Deputy Commissioner

and having suffered adverse orders at the hands of the

Assistant Commissioner and the Deputy Commissioner, they

have slept over the matter for more than four years. The PTCL

Act being a beneficial legislation and the provisions of the Act

having been upheld by the Hon'ble Supreme Court, right from

the case of Manchegowda and Others Vs. State of Karnataka

reported in 1984(3) SCC 301, coupled with the fact that the

sale transactions were in violation of Section 4(2) of the Act,

there being no prior permission taken by the grantee from the

State Government, the writ petition cannot be entertained.

11. Consequently, without going into the merits of the

matter, the writ petition stands dismissed.

It is ordered accordingly.

Sd/-

JUDGE

DL/JT