Mr Umar Khatri vs Mr Bettaiah
2022 Latest Caselaw 11797 Kant

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF SEPTEMBER, 2022

                         PRESENT

              THE HON'BLE MR. ALOK ARADHE
                  ACTING CHIEF JUSTICE

                           AND

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                 W.A.No.88/2020(SC-ST)

BETWEEN:

MR. UMAR KHATRI
S/O YUNUS KHATRI
AGED ABOUT 57 YEARS
RESIDING AT NO.115
MARGOSA ROAD
MALLESHWARAM
BENGALURU - 560 003.                        ...APPELLANT

(BY SRI UDAYA HOLLA, SR. COUNSEL FOR
    SRI RAMESH P. KULKARNI, ADV.)

AND:

1.     MR. BETTAIAH
       S/O LATE BETTEGOWDA
       AGED ABOUT 69 YEARS
       RESIDING AT 29 & 30
       7TH A CROSS, 23RD A MAIN
       JP NAGAR II PHASE
       BENGALURU - 560 078.

2.     THE DEPUTY COMMISSIONER
       BENGALURU DISTRICT
       BENGALURU - 560 001.
                              2



3.   THE ASSISTANT COMMISSIONER
     BENGALURU NORTH SUB-DIVISION
     BENGALURU - 560 001.

4.   MR. KUNNAPPA
     S/O LATE K. MUNIYAPPA
     AGED MAJOR
     RESIDING AT SURADENUPURA
     VILLAGE, HESARAGHATTA HOBLI
     BANGALORE NORTH (ADDL) TALUK
     BENGALURU - 560 091.

5.   MRS. MANJAMMA
     W/O KUNNAPPA
     AGED MAJOR
     R/AT SURADENUPURA VILLAGE
     HESARAGHATTA HOBLI
     BANGALORE NORTH (ADDL) TALUK
     BENGALURU - 560 091.

6.   MRS. MARAKKA
     W/O POOJAPPA
     AGED MAJOR
     R/AT SURADENUPURA VILLAGE
     HESARAGHATTA HOBLI
     BANGALORE NORTH (ADDL) TALUK
     BENGALURU - 560 091.              ...RESPONDENTS

(BY SRI V. LAKSHMINARAYANA, SR. COUNSEL FOR
    SRI B. RAVINDRANATH, ADV., FOR R-1 & R-4;
    SRI S.S. MAHENDRA, AGA FOR R-2 & R-3;
    V/O DATED 16.11.2021 NOTICE TO R-4 & R-5 &
    V/O DATED 07.12.2021 NOTICE TO R-6 IS HELD SUFFICIENT)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE
ORDER DATED 06.12.2019 PASSED BY THE LEARNED SINGLE
JUDGE IN W.P.NO. 46623/2013 (SC-ST) AND ETC.


     THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS
DAY, VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:
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                          JUDGMENT

This intra court appeal has been filed challenging the

order dated 06.12.2019 passed by the learned Single Judge

of this Court in W.P.No.46623/2013.

2. Heard the learned Senior Counsel appearing for the

parties and also perused the material on record.

3. Brief facts of the case that would be necessary for

the purpose of disposal of this appeal are, land bearing Sy.

No.31 (new No.59) of Sriramanahalli village, Hesaraghatta

Hobli, Bengaluru North (Addl.) Taluk, measuring 2 acres was

granted to one Sri Muniyappa on 19.08.1949. The original

grantee - Muniyappa had sold the said property in favour of

one Revanasiddappa under a registered sale deed dated

08.05.1974. The said Revanasiddappa had sold the land in

question in favour of one Narasimha Reddy on 10.09.1980,

who intrun had sold the land in question in favour of one

K.A.Nataraj and K.A.Ravi Kumar under a registered sale deed

dated 18.08.1983. K.A.Nataraj and K.A.Ravi Kumar,

thereafter, had sold the land in question to one Palagondappa

Halappa under a registered sale deed dated 06.05.1987.

Palagondappa Halappa had sold the said property in favour of

one Bylappa on 01.01.1993 and the appellant herein had

purchased the land in question from the sons of the aforesaid

Bylappa under a registered sale deed dated 18.08.2005.

4. The legal heirs of the original grantee - Muniyappa

had filed an application in the year 2005 under Section 5 of

the Karnataka Scheduled Castes and Scheduled Tribes

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

'PTCL Act') seeking resumption of the land before the

Assistant Commissioner. The appellant was not made a party

to the said proceedings. The Assistant Commissioner by order

dated 31.05.2008 had ordered resumption of the land in

question in favour of the legal heirs of the original grantee.

The said order dated 31.05.2008 was challenged by the

appellant herein before the Deputy Commissioner under

Section 5-A of the PTCL Act and during the pendency of the

said appeal, the legal heirs of the original grantee obtained

permission from the State Government to sell the land in

question, and thereafter, on 03.08.2011, respondent no.1

herein had purchased the land in question from the legal

heirs of the original grantee.

5. Subsequently, the Deputy Commissioner allowed the

appeal filed by the appellant on 06.08.2013 and set aside the

order passed by the Assistant Commissioner dated

31.05.2008. Challenging the said order dated 06.08.2013

passed by the Deputy Commissioner, respondent no.1 herein

had filed W.P.No.46623/2013, while the legal heirs of the

original grantee had filed W.P.No.39674/2013, which was

subsequently dismissed as withdrawn on 10.03.2014. The

learned Single Judge, thereafter by the order impugned has

allowed W.P.No.46623/2013 filed by respondent no.1 herein

and the matter is remitted back to the Assistant

Commissioner for fresh enquiry. Being aggrieved by the said

order, respondent no.3 in W.P.No.46623/2013 has preferred

this appeal.

6. Learned Senior Counsel appearing for the appellant

submits that the PTCL Act had come into force with effect

from 01.01.1979 and the application under Section 5 of the

PTCL Act has been undisputedly filed in the year 2005 i.e.,

after an inordinate delay of 26 years. He submits that

respondent no.1 who is a purchaser pendente lite is not

entitled for any hearing in the matter. He also submits that

the legal heirs of the original grantee have withdrawn

W.P.No.39674/2013 filed by them challenging the order

passed by the Deputy Commissioner, and therefore, the

learned Single Judge could not have placed reliance on the

judgment of this Court in the case of SMT. P.KAMALA VS THE

STATE OF KARNATAKA & OTHERS1. In support of his

arguments, learned Senior Counsel for the appellant has

placed reliance on the judgments in the case of NEKKANTI

RAMA LAKSHMI VS STATE OF KARNATAKA & ANOTHER2,

VIVEK M.HINDUJA VS M.ASWATHA3, NINGAPPA VS DEPUTY

COMMISSIONER & OTHERS4, and DHARMAPAL SATYAPAL

LIMITED VS DEPUTY COMMISSIONER OF CENTRAL EXCISE,

GAUHATI & OTHERS5.

7. Per contra, learned Senior Counsel appearing for

respondent no.1 submits that the sale deeds executed prior

ILR 2019 KAR 3301

(2020)14 SCC 232

(2019)1 Kant LJ 819 SC

(2020)14 SCC 236

(2015)8 SCC 519

to the State granting permission to sell the granted land are

all void transactions, and therefore, the purchasers

thereunder including the appellant do not derive any valid

title under their respective sale deeds. He submits that

respondent no.1 has purchased the property pursuant to the

permission granted under Section 4(2) of the PTCL Act, and

therefore, he has derived a valid title over the land in

question. He submits that the Deputy Commissioner had

passed an order without hearing respondent no.1, and

therefore, the learned Single Judge has rightly remitted the

matter. He also submits that the first sale deed has been

executed within the non-alienation period, and therefore, the

said document is a void document and all the sale deeds

executed thereafter are also void documents. He submits that

the law of limitation is not applicable to quasi-judicial

authorities, and therefore, there is no merit in the contention

urged by the appellant's counsel that the application under

Section 5 of the PTCL Act could not have been entertained

after an inordinate delay of 26 years. He further submits that

in the absence of any challenge to the order dated

09.03.2011 passed by the State Government under Section

4(2) of the PTCL Act permitting sale of the land in question,

there cannot be any challenge to 1st respondent's title in

respect of the land in question, and therefore, the appeal

does not merit consideration. He further submits that if the

rules of principles of natural justice are not followed by the

original authority, the same cannot be cured by the appellate

authority, and therefore, the learned Single Judge was

justified in remanding the matter. In support of his

contentions, he has relied upon the following decisions:

i) 63 MOONS TECHNOLOGIES LIMITED (FORMERLY KNOWN AS FINANCIAL TECHNOLOGIES INDIA LIMITED) & OTHERS VS UNION OF INDIA & OTHERS6.

ii) SAKRU VS TANAJI7.

iii) PAPAIAH VS STATE OF KARNATAKA8.

       iv)    STATE    OF     RAJASTHAN           VS    UCCHAB        LAL
CHHANWAL9.

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

question was granted to one Muniyappa on 19.08.1949, who

(2019)18 SCC 401

(1985)3 SCC 590

(1996)10 SCC 533

(2014)1 SCC 1440

had executed a registered sale deed in respect of the granted

land in favour of one Revanasiddappa on 08.05.1974.

Thereafter, several transactions have taken place in respect

of the land in question and the appellant herein had

purchased the land in question under a registered sale deed

dated 18.08.2005. The application seeking resumption under

Section 5 of the PTCL Act was filed by the legal heirs of the

original grantee in the year 2005 before the Assistant

Commissioner. The PTCL Act has come into force with effect

from 01.01.1979. Therefore, the application for resumption

has been undisputedly filed by the legal heirs of the original

grantee after a lapse of 26 years from the date the PTCL Act

came into force.

9. The Assistant Commissioner had allowed the

application filed by the legal heirs of the original grantee and

the said order was challenged by the appellant herein before

the Deputy Commissioner under Section 5-A of the PTCL Act.

During the pendency of the appeal on the application of the

legal heirs of the original grantee, the State Government had

granted permission for sale of the land in question and

respondent no.1 herein had thereafter purchased the land in

question under a registered sale deed dated 03.08.2011. The

Deputy Commissioner has allowed the appeal filed by the

appellant on 06.08.2013. Therefore, it is clear that

respondent no.1 had purchased the land in question pendente

lite from the legal heirs of the original grantee.

10. The legal heirs of the original grantee had filed

W.P.No.39764/2013 challenging the order dated 06.08.2013

passed by the Deputy Commissioner, and subsequently, they

have withdrawn the said writ petition. Therefore,

undisputedly, there is no challenge to the order passed by the

Deputy Commissioner by the legal heirs of the original

grantee from whom respondent no.1 herein had purchased

the land in question during the pendency of the appeal filed

by the appellant herein before the Deputy Commissioner. It is

trite law that a purchaser pendente lite is bound by the

orders passed in the proceedings which was pending

consideration as on the date of transaction under which

he/she sets up a claim. Under these circumstances, in our

considered view, the learned Single Judge was not justified in

placing reliance on the judgment of the Division Bench of this

Court in P.Kamala's case supra and remanding the matter to

the authorities to consider the matter afresh. In P.Kamala's

case, the matter was remanded to provide an opportunity to

the legal representatives of the original grantee to explain the

delay caused in filing the application under Section 5 of the

PTCL Act. In present case, the legal heirs have withdrawn

their claim in respect of the land in question, and therefore,

the learned Single Judge was not justified in placing reliance

on the judgment in P.Kamala's case supra for the purpose of

remanding the matter.

11. The Hon'ble Supreme Court in Neekanti Rama

Lakshmi's case and Vivek M.Hinduja's case supra, has clearly

held that any action either on the application of the grantee

or the legal representatives of the grantee or suo motu for

restoration of the lands in favour of the grantee or his legal

representatives is required to be made within a reasonable

period. In Ningappa's case supra, the Hon'ble Apex Court had

declined to entertain the application for restoration which was

submitted after a period of nine years.

12. Undisputedly, the application under Section 5 of the

PTCL Act has been filed in the present case after an

inordinate delay of 26 years, and therefore, it is very clear

that the legal heirs of the original grantee had failed to

initiate action under the provisions of the PTCL Act within a

reasonable period from the date PTCL Act came into force.

Under the circumstances, we are of the view that the learned

Single Judge was not justified in placing reliance on the

judgment in SATYAN VS DEPUTY COMMISSIONER &

OTHERS case supra, wherein the delay in filing the

application was eight years.

13. In Ningappa's case supra, the Hon'ble Apex Court

has held that delay of nine years in filing the application

under Section 5 of the PTCL Act as beyond reasonable period,

and therefore, in our view, definitely the period of 26 years is

required to be considered as an inordinate delay in filing the

application and the same is beyond the reasonable period.

14. Section 5 of the PTCL Act provides for resumption

and restitution of the granted land either on the application of

AIR 2019 SC 2797

any interested person or on information given in writing by

any person or suo-motu and the Assistant Commissioner is

empowered under this provision to resume/restore the

granted land in favour of the grantee/legal heirs of the

grantee in the event he is satisfied after enquiry that the

transfer of granted land is in violation of Section 4 of the

PTCL Act. Under this provision, he is also empowered to take

possession of such land after evicting all persons in

possession thereof and in the event he is not in a position to

restore the land to the grantee, such land shall be deemed to

have vested in the Government free from all encumbrances

and the Government may grant such land to a person

belonging to any of the Scheduled Castes or Scheduled Tribes

in accordance with the Rules relating to grant of land.

Therefore, even if the transfer of granted land is null and

void, the same can be restored or resumed to the grantee or

his legal representatives only pursuant to an order passed

under Section 5 of the PTCL Act.

15. In Papaiah's case supra, it has been held that

transfer of granted land during the prohibited period would be

null and void. We are in respectful agreement with the view

taken by the Hon'ble Supreme Court in Papaiah's case supra.

16. However, for resumption and restitution of the

granted land which have been transferred in violation of

Section 4 of the PTCL Act, action is required to be taken

within a reasonable period and the law in this regard has

been laid down by the Hon'ble Supreme Court in Neekanti

Rama Lakshmi's case and Vivek M.Hinduja's case supra. This

Court has been consistently following the said judgments and

wherever there is a delay of more than nine years in filing the

application under Section 5 of the PTCL Act, this Court has

held that the action taken is beyond a reasonable period. No

exception can be made in this case that too when the delay in

filing the application under Section 5 of the PTCL Act is more

than 26 years.

17. Respondent no.1 herein has purchased the land in

question during the pendency of the appeal filed by the

appellant herein under Section 5-A of the PTCL Act before the

Deputy Commissioner. The legal heirs of the original grantee

who were the respondents in the said appeal have accepted

the order passed by the Deputy Commissioner by

withdrawing the writ petition which was filed by them

challenging the order of the Deputy Commissioner. It is trite

law that a purchaser pendente lite would be bound by the

orders passed in the proceedings that was pending at the

time of purchase of the land in question which was the

subject matter of the pending proceedings.

18. The purchaser pendente lite cannot be said to be a

just and necessary party to the proceedings which were

pending at the time of he/she purchasing the land in

question. Therefore, the contention of respondent no.1 that if

a party who is likely to suffer from the order of the court and

has not been impleaded as a party has a right to ignore the

said order as it has been passed in violation of the principles

of natural justice, is liable to be rejected, and therefore, we

are of the view that the judgment of the Hon'ble Supreme

Court in Ucchab Lal Chhanwal's case and 63 Moons

Technologies Limited's case supra cannot be made applicable

to the facts and circumstances of the present case.

19. The power under Section 5 of the PTCL Act

conferred upon the Assistant Commissioner is to determine

whether the transfer of any granted land is null and void for

violation of Section 4 of the PTCL Act after such enquiry as he

deems necessary. Proceedings was initiated under Section 5

of the PTCL Act pursuant to an application filed by the legal

heirs of the original grantee in the year 2005 and placing

reliance on the judgments of the Hon'ble Supreme Court in

Neekanti Rama Lakshmi's case, Vivek M.Hinduja's case and

Ningappa's case supra, we have already held that the

application under Section 5 of the PTCL Act was filed by the

legal heirs of the original grantee beyond the reasonable

period, and therefore, the Assistant Commissioner could not

have entertained the said application. Further, the Deputy

Commissioner's order setting aside the order passed by the

Assistant Commissioner passed in exercise of the power

under Section 5 of the PTCL Act has attained finality in so far

as the legal heirs of the original grantee are concerned having

regard to the fact that they have withdrawn

W.P.No.39674/2013 filed by them challenging the order

passed by the Deputy Commissioner under Section 5-A of the

PTCL Act. Therefore, in our considered view, it was wholly

unnecessary for the learned Single Judge to remand the

matter to the Assistant Commissioner.

19. The learned Single Judge has failed to appreciate

the scope of enquiry under Section 5 of the PTCL Act and he

has also erred in holding that the matter has to be remitted

to the Assistant Commissioner to provide an opportunity to

the legal heirs of the original grantee in view of the judgment

in P.Kamala's case supra. Under the circumstances, the order

impugned passed by the learned Single Judge cannot be

sustained. Accordingly, the following order.

20. The writ appeal is allowed. The order dated

06.12.2019 passed by the learned Single Judge in

W.P.No.46623/2013 is set aside.

Sd/-

ACTING CHIEF JUSTICE

Sd/-

JUDGE

KK