Shivagi Bai vs Mouneshachari
2022 Latest Caselaw 4000 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 9TH DAY OF MARCH, 2022

                          PRESENT

           THE HON'BLE MR. JUSTICE ALOK ARADHE

                                AND

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                    W.A.No.1020/2021

BETWEEN:

SHIVAGI BAI
W/O LATE RAMA NAIK,
AGED ABOUT 54 YEARS,
AGRICULTURIST,
R/AT JOGA VILLAGE,
HONNALI TALUK 577217,
DAVANAGERE DISTRICT.                   ... APPELLANT

(By Sri Rajendra.S., Adv. for
   Sri S.V.Prakash, Adv.)

AND:

1.      MOUNESHACHARI
        S/O HIRIYANAPPA
        SINCE DECEASED REPRESENTED BY HIS LRS

1(A)    KALAMMA
        W/O LATE MOUNESHACHARI
        AGED ABOUT 65 YEARS

1(B)    MANJUNATH
        S/O LATE MOUNESHACHARI
        AGED ABOUT 35 YEARS

1(C)    VISHWANATH
        S/O LATE MOUNESHACHARI
        AGED ABOUT 32 YEARS
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     RESPONDENTS 1(A) TO 1(C) ARE
     RESIDNETS OF CHINNIKATTE VILLAGE,
     HONNALI TALUK 577217,
     DAVANAGERE DISTRICT.

2.   DEPUTY COMMISSIONER
     DAVANAGERE DISTRICT 577002.

3.   ASSISTANT COMMISSIONER
     DAVANAGERE SUB DIVISION,
     DAVANAGERE DISTRICT 577 002.          ... RESPONDENTS

(By Smt. Vani.H., AGA)

      This writ appeal is filed under Section 4 of the
Karnataka High Court Act, praying to set aside the order
dated 23.12.2020 passed by the Learned Single Judge of this
hon'ble court in WP No.45725/2017 by allowing this writ
appeal in the ends of justice and consequently dismiss the
writ petition in WP No.45725/2017.

     This appeal coming on for Preliminary Hearing, this day,
Vishwajith Shetty J., delivered the following:

                        JUDGMENT

1. This intra court appeal has been filed challenging the

order dated 23.12.2020 passed by the learned Single Judge

of this Court in W.P.No.45725/2017.

2. Brief facts of the case as revealed from the records are,

the land bearing Sy. No.205 measuring 5 acres 16 guntas of

Chinnikatti village, Honalli Taluk, Davanagere District, was

granted in favour of one Takrya Naika on 28.06.1956. The

original grantee sold the said land in the year 1961, and

subsequently, petitioner had purchased the said land under

the registered sale deed dated 16.04.1979. The legal heirs of

the original grantee filed an application seeking restoration of

the land in question in the year 2009 alleging that the sale of

the land in question was in contravention of Section 4 of the

Karnataka Scheduled Castes and Scheduled Tribes

(Prohibition of Transfer of Certain Lands) Act, 1978 (for short,

'PTCL Act').

3. The Assistant Commissioner vide his order dated

07.12.2011 had allowed the said application and restored the

land in question in favour of the applicant who claimed to be

the legal heir of the original grantee. The said order was

questioned by the petitioner before the Deputy Commissioner

who confirmed the order passed by the Assistant

Commissioner vide his order dated 29.06.2015. It is under

these circumstances, the petitioner had filed

W.P.No.45725/2017 before this Court. The learned Single

Judge of this Court vide the impugned order has allowed the

writ petition and set aside the order passed by the Assistant

Commissioner as well as the Deputy Commissioner. Being

aggrieved by the same, respondent no.3 who is the legal heir

of the original grantee has preferred this appeal.

4. Learned Counsel for the appellant/respondent no.3

submits that the order passed by the learned Single Judge is

unsustainable as the petitioner had died during the pendency

of the writ petition itself and his legal heirs were not brought

on record. He also submits that the delay caused in filing the

application for restoration will not come in the way of the

statutory authorities in considering the same on merits since

the PTCL Act is a beneficial legislation.

5. The undisputed facts of the case are that the land in

question was granted to the originally grantee - Takrya Naika

on 28.06.1956 under whom respondent no.3 claims right and

title over the said land. During his life time, the original

grantee had sold the land in the year 1962, and

subsequently, the petitioner had purchased the very same

land under a registered sale deed dated 16.04.1979 from one

Chavlibai. The application under Section 5 of the PTCL Act has

been filed by the legal heir of the original grantee only in the

year 2009 i.e., after a lapse of 30 years from the PTCL Act

coming into force. The learned Single Judge taking into

consideration the judgment of the Hon'ble Supreme Court in

the case of NEKKANTI RAMA LAKSHMI VS STATE OF

KARNATAKA & ANOTHER - (2020)14 SCC 232 and VIVEK

M.HINDUJA VS M.ASWATHA - (2019)1 Kant LJ 819 SC, has

held that the application filed for restoration under Section 5

of the PTCL Act was beyond reasonable period, and therefore,

the Assistant Commissioner was not justified in entertaining

the same, and accordingly, had allowed the writ petition and

set aside the orders passed by the Assistant Commissioner

and the Deputy Commissioner. We find no illegality or

infirmity in the order passed by the learned Single Judge.

6. Learned Counsel for respondent no.3 has raised a

singular contention that the petitioner had died during the

pendency of the writ petition, and therefore, the order passed

by the learned Single Judge without bringing the legal

representatives of the petitioner on record, is legally

unsustainable. In normal circumstances, we could have

appreciated the said argument and we would have set aside

the order passed by the learned Single Judge and remitted

the matter for fresh consideration after bringing the legal

representatives of the petitioner on record. However, in the

case on hand, the admitted facts would go to show that the

application for restoration under Section 5 of the PTCL Act

has been filed by respondent no.3 only after 30 years after

the PTCL Act coming into force. The said aspect cannot be

changed even if the matter is remitted to the Single Judge for

fresh consideration of the petition after bringing the legal

representatives of the petitioner on record.

7. The law laid down by the Hon'ble Supreme Court in

NEEKANTI RAMA LAKSHMI'S case and VIVEK M.HINDUJA'S

case supra, is squarely applicable to the facts of the present

case, and undoubtedly, the application for restoration has

been filed by the legal representative of the original grantee

beyond the reasonable time.

8. The Hon'ble Supreme in the case of NINGAPPA VS

DEPUTY COMMISSIONER & OTHERS - (2020)14 SCC 236,

has held that the application for restoration filed after the

period of nine years was beyond reasonable period. In the

case on hand, the application for restoration has been filed

after 30 years from the date of the PTCL Act coming into

force, and therefore, we find no good reason to set aside the

order passed by the learned Single Judge and we are of the

opinion that the matter is required to be given a quietus.

Therefore, we decline to entertain the appeal. Accordingly,

the appeal stands dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

KK