Shivaraju vs The Deputy Commissioner
2022 Latest Caselaw 745 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 17TH DAY OF JANUARY, 2022

                       PRESENT

          THE HON'BLE MRS.JUSTICE S.SUJATHA

                         AND

        THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                W.A.No.850/2021 (SCST)

BETWEEN :
1.     SHIVARAJU
       S/O LATE CHIKKAMUNIYAPPA
       AGED ABOUT 35 YEARS

2.     RAMACHANDRA
       S/O LATE CHIKKAMUNIYAPPA
       AGED ABOUT 33 YEARS

3.     LAKSHMIDEVI
       S/O LATE CHIKKAMUNIYAPPA
       AGED ABOUT 35 YEARS

RESPS 1 TO 3 ARE R/AT No.278
A.K. COLONY, THANISANDRA
DR.SHIVARAMAKARANTHA POST
KRISHNARAJAPURA POST AND HOBLI
BANGALORE EAST TALUK- 560054.

4.     B.AKKAYAMMA
       W/O ANJINAPPA
       AGED ABOVE 60 YEARS
       R/AT SANJAYANAGAR
       SHED ROAD, K.R.PURAM
       BANGALORE - 560036

5.     MUNIRATNAMMA.C
       D/O LATE CHIKKAMUNIYAPPA
       AGED ABOUT 30 YEARS
                             -2-



        R/AT No.278, A.K.COLONY,
        THANISANDRA,
        DR.SHIVARAMAKARANTHA POST
        KRISHNARAJAPURA POST AND HOBLI
        BANGALORE EAST TALK 560077.          ...APPELLANTS

        (BY SRI JAYKUMAR S. PATIL, SENIOR COUNSEL FOR
                    SRI SOMARAJU.A., ADV.)

AND :
1.      THE DEPUTY COMMISSIONER
        BANGALORE DISTRICT
        BANGALORE-560001.

2.      THE ASSISTANT COMMISSIONER
        BANGALORE NORTH SUB-DIVISION
        BANGALORE-560001.

3.      LAKSHMAMMA
        D/O LATE DODDAMUNIYAPPA
        C/O MUNI CHINNAPPA

4.      MUNIYAMMA
        D/O LATE DODDAMUNIYAPPA
        C/O MUNIYAPPA
RESPONDENTS 3 AND 4 ARE R/AT
DEVAGANAHALLI, KUNDANA HOBLI
DEVANAHALLI TALUK-560036
BANGALORE RURAL DISTRICT.
5.      MAMATHA
        D/O PARVATHAMMA ANNEYAPPA

6.      RAGHU
        S/O LATE PRVATHAMMA ANEEYAPPA

RESPONDENTS 7 AND 8 ARE R/AT
CHIMANAHALLI VILLAGE
CHENNARAYAPATNA HOBLI
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT-560034.

7.      QUEENY STEPHEN
        W/O LATE STEPHEN
        AGED ABOUT 58 YEARS
                             -3-



8.     WILLIAM STEPHEN
       S/O LATE STEPHEN
       AGED ABOUT 32 YEARS
       R/AT NO.49, HUCHINS ROAD
       BANGALORE-560084.                   ...RESPONDENTS

       (BY SRI SHASHI KUMAR.G.V., AGA FOR R-1 & R-2;
     SRI L.P.G. REGO & ARJUN REGO ADVS. FOR R-7 & R-8.)

     THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
FINAL ORDER DATED 22/07/2021 PASSED BY LEARNED
SINGLE    JUDGE      IN W.P.NO.48351-52/2017    AND
CONSEQUENTLY DISMISS THE WRIT PETITION FILED BY THE
RESPONDENT NO.1 AND 2 HEREIN AND PASS ANY OTHER
ORDER OR DIRECTION ON THE FACTS AND CIRCUMSTANCES
OF THE ABOVE APPEAL.

     THIS APPEAL COMING ON FOR PRELIMINARY HEARING,
THIS DAY, S. SUJATHA, J., DELIVERED THE FOLLOWING:

                     JUDGMENT

This Intra Court appeal is directed against the

order dated 22.07.2021 passed in W.P.No.48351/2017

whereby the writ petition filed by the respondent Nos.7

and 8 herein has been allowed quashing the impugned

order dated 20.09.2017 [Annexure-A] passed by the

respondent No.1 - Deputy Commissioner, Bengaluru

wherein the order passed by the Assistant

Commissioner, Bengaluru - respondent No.2 herein

[Annexure-B] are quashed.

2. The appellants contend that the lands in

Sy.No.94 for the extent of 2 acres 37 guntas of

Thanisandra village, Krishnarajapuram Hobli, formerly

in Bangalore South Taluk - now in Bangalore East

Taluk was originally granted in favour of Laguma @

Dekka on 20.01.1937 under the Darkasth Rules. The

husband of the respondent No.3 herein had purchased

the said property from the legal heirs of the said grantee

on 16.12.1994 through the registered sale deeds vide

common document Nos.8758/1994-95 and 8763/

1994-95.

3. The appellants herein claiming to be the

legal heirs of the original grantee Laguma @ Dekka had

filed O.S.No.1311/1999 for partition and separate

possession of the said granted lands before the I

Additional City Civil and Sessions Judge [CCH-2]

against the family members and the respondent Nos.7

and 8 herein. The said suit came to be dismissed on

17.04.2012. Thereafter the appellants had filed the

application before the Assistant Commissioner,

Bengalore North Sub-division under the Karnataka

Scheduled Caste and Scheduled Tribes [Prohibition of

Transfer of Certain Lands] Act, 1978 ['PTCL Act' for

short] whereby an order was passed by the Assistant

Commissioner restoring the lands in favour of the

grantee [LRs of the grantee].

herein had filed an appeal before the first respondent -

Deputy Commissioner and the same came to be

dismissed by upholding the orders of the Assistant

Commissioner. Aggrieved by the said orders, the

respondent Nos.7 and 8 herein had filed

W.P.Nos.48351-52/2017 which has been allowed by the

Writ Court. Hence, this writ appeal by appellants.

5. Learned Senior Counsel Sri.Jaykumar S.

Patil representing the appellants submitted that the

learned Single Judge has allowed the Writ Petition

mainly on the ground that the application filed by the

appellants after lapse of 21 years was not maintainable,

hence the orders passed by the respondent Nos.1 and 2

herein are liable to be set aside. Placing reliance on the

Co-ordinate bench decisions of this Court in the case of

Smt.P.Kamala V/s. The State of Karnataka, Rep. By

Its Secretary, Revenue Department and Others [ILR

2019 KAR 3301] and in the case of Smt.Kavita V/s.

The Deputy Commissioner and Others

[W.A.No.100893/2015, D.D. 02.07.2020], the learned

Senior Counsel submitted that the order of the Writ

Court is against the principles of audi alteram partem

since no opportunity was given to the appellants to

explain the reasons for delay. It was submitted that

O.S.No.1311/1999 was filed by the appellants against

the family members of the original grantee and the

appellants herein, which came to be dismissed for want

of Court fee. These appellants were not the signatories

to the sale deeds executed. The said sale deeds not

being binding on these appellants, the learned Single

Judge ought to have addressed the issues on merits

instead of allowing the writ petition merely on the

ground of delay and laches said to have been caused by

the appellants in approaching the authorities under the

PTCL Act.

6. Learned counsel for the respondent Nos.7

and 8 submitted that O.S.No.1311/1999 was a collusive

suit filed by the appellants to knock off the property

sold by the legal heirs of the original grantee through

registered sale deeds. The said suit was dismissed after

adjudicating upon the issues framed considering the

merits of the case, not merely on the aspect of Court fee,

as contended by the appellants. It was argued that a

specific stand was taken by the respondent Nos.7

and 8/petitioners before the Writ Court that even

though the appellants herein were aware that the lands

were purchased by the petitioners in the year 1994,

belatedly they approached the learned Assistant

Commissioner contending that the land in question is

the granted land. In the statement of objections to the

writ petition filed by the appellants, an attempt was

made to explain the delay caused in approaching the

authorities under the PTCL Act. Para Nos.8, 14, 15 in

the statement of objections filed by the appellants were

referred, to contend that indeed, Smt.P.Kamala's

case supra has been cited by the appellants to

substantiate the reasons for the delay caused in

approaching the authorities. Thus, it was argued that

Smt.P.Kamala's case supra, was rendered in the

context where no opportunity was provided to the

grantee/legal heirs of the grantee for explaining the

delay either before the authorities or before the learned

Single Judge. But in the present case, even such plea

was taken before the fact finding authorities as well as

before the learned Single Judge and the appellants

herein had filed counter explaining the cause for delay

amongst other grounds. In the case of Smt.Kavitha

supra, the Coordinate Bench has referred to the

decision of the Hon'ble Apex Court in the case of

Satyan V/s. Deputy Commissioner and Others. In

Satyan case [C.A.Nos.2976-2983/2019], the Hon'ble

Apex Court examined the application of limitation

principles vis-à-vis the scheme of the Act in the

background of eight years delay in taking action but,

the period of 21 years would make vast difference.

7. Nextly, it was contended that no original

grant certificate and genealogical tree was produced by

the appellants neither in O.S.No.1311/1999 nor before

the Writ Court. The order of the learned Single Judge

based on the recent judgments of the Hon'ble Apex

Court in the case of Nekkanti Rama Lakshmi V/s.

State of Karnataka and Another [(2020) 14 SCC

232] and Vivek M. Hinduja V/s. M.Aswatha [(2019) 1

Kant LJ 819 (SC)] is justifiable and the same deserves

to be confirmed.

- 10 -

8. Learned Additional Government Advocate

appearing for the official respondents submitted that

the acquisance is quite evident. Issue No.3 in

O.S.No.1311/1999 relates to the purchase of the

property in question by the respondent Nos.7 and 8

herein.

9. We have carefully considered the rival

submissions of the learned counsel appearing or the

parties and perused the material on record.

10. The factual aspects that the land was

granted in favour of Laguma @ Dekka on 20.01.1937

and the sale of the land in question in favour of

husband of the respondent No.7 and father of the

respondent No.8 under two registered sale deeds dated

16.12.1994 by the leagal heirs of the original grantee -

Laguma @ Dekka as well as filing of application by the

appellants herein under the provisions of PTCL Act after

about 21 years are not in dispute.

- 11 -

11. The arguments advanced by the learned

Senior Counsel appearing for the appellants has to be

negated for the following reasons: Firstly, in

Smt.P.Kamala supra, the Co-ordinate bench of this

Court has decided the validity of the action for

resumption and restoration after a lapse of 20 years in

the context of the purchaser not raising an objection or

plea regarding delay and laches, before the Assistant

Commissioner nor before the learned Single Judge. In

that scenario, the Division Bench has held that the

grantee, if afforded such an opportunity, may file an

affidavit along with cogent evidence and such an

explanation may be examined which would satisfy the

basic tenets of law inasmuch as the principles of audi

alteram partem. But, as pointed out by the learned

counsel for the respondent Nos.7and 8 that the said

plea/objection was raised before the fact finding

authority as well as the learned Single Judge. Indeed

the appellants have made an endeavor to explain the

- 12 -

the reasons for the delay of 21 years caused in filing the

application. The main ground is the pendency of

O.S.No.1311/1999. Admittedly, the said suit came to be

dismissed on 17.04.2012. Against which RFA filed by

the appellants is said to be pending before this Court. It

is pertinent to note that the said suit O.S.No.1311/1999

was dismissed on adjudicating upon the issues on

merits wherein, issue No.3 relates to the sale deed

executed in favour of Mr. A.Stephen, not merely for

want of Court fee as argued by the learned Senior

Counsel for the appellants. Be that as it may, the

inordinate delay in filing the application was strongly

objected by the respondent Nos.7 and 8 and the

opportunity to explain the cause for the delay was

available and the same was availed by the appellants

before the fact finding authority and the learned Single

Judge. Hence, the law laid down in Smt.P.Kamala

supra, is not applicable to the facts of case on hand.

- 13 -

12. In Smt.Kavita supra, the Co-ordinate Bench

wherein one of us, [Hon'ble Mrs. SSJ] was a member

has referred to the decision of the Hon'ble Apex Court in

the case of Satyan supra. The Hon'ble Apex Court

considering the delay of 8 years, has held that the said

period cannot be said to be such, as to amount to such

delay and laches as would make the action void.

13. In the recent judgment of Nekkanti Rama

Lakshmi supra, the Hon'ble Apex Court having

considered the application for restoration of the land

made by the heir of the original grantee after

unreasonable long period i.e., 25 years from the Act

coming into force, has overruled the judgments of this

Court namely, R.Rudrappa V/s. Deputy

Commissioner, [(2000) 1 KLJ 523], Maddurapppa

V/s. State of Karnataka [(2006) 4 KLJ 303] and

G.Maregouda V/s. The Deputy Commissioner,

Chitradurga District, Chitradurga and Others [2000

- 14 -

(2) Kr.L.J.Sh. N.4B], wherein it has been held that

there being no limitation provided by Section 5 of the

Act, an application could be made at any time.

14. Similarly, in Vivek M. Hinduja supra, the

Hon'ble Apex Court has refrained to accede to the

contention that it makes no difference if the proceedings

were initiated even after 20 to 25 years and held that

where limitation is not prescribed, the party ought to

approach the competent Court or Authority within a

reasonable time, beyond which no relief can be granted,

this principle would apply even in suo motu actions.

15. The learned Single Judge of this Court in

W.P.No.24501/2012 [D.D. 30.01.2018], has referred

to these decisions in coming to the conclusion that in

order to amend the transactions based on the

provisions contained under Sections 4 and 5 of the

PTCL Act, the party claiming benefit must initiate

proceedings within reasonable period. Indeed, these

- 15 -

judgments were cited by the learned Senior Counsel

now who is representing the appellants herein.

16. In the light of the aforesaid judgments of the

Hon'ble Apex Court, the learned Single Judge has

rightly held that the unreasonable delay and laches of

21 years in approaching the Authorities would disentitle

the appellants to seek for restoration of land under the

provisions of Sections 4 and 5 of the Act. Moreover, as

observed by the learned Single Judge, the material on

record would disclose that the purchaser has fully

developed the land in question wherein, a church, a

prayer hall and an orphanage are existing now.

For the reasons aforesaid, we find no error in the order impugned.

- 16 -

In the result, appeal stands dismissed.

All the pending IAs stand disposed of accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

NC.