Muniyappa @ Chikkamuniyappa v. Special Deputy Commissioner
2019-06-07
S.SUNIL DUTT YADAV
body2019
DigiLaw.ai
JUDGMENT : S. Sunil Dutt Yadav, J. The petitioner claiming to be the legal heir of the original grantee has filed the present writ petition seeking for an appropriate order to set aside the order dated 12.10.2009 (Annexure-G) passed by the Deputy Commissioner in Appeal No.SC/ST(A)98/2007-2008 whereby the appeal came to be allowed setting aside the order of the Assistant Commissioner thereby rejecting the application filed on behalf of the grantee for resumption and restoration. 2. The petitioner claims that land measuring 2 acres 4 guntas situated at Kannamangala Village in Bidarahalli Hobli, Bengaluru East Taluk, (previously Hoskote Taluk), Bengaluru Urban District was granted on 15.07.1935 in favour of the grandfather of the petitioner and it is stated that extract of the Saguvali Chit Register evidences the said grant. It is further stated that the first sale was executed on 30.03.1954 and there were further sales on 25.07.1960 and on 11.04.1973. The respondent No.3 claims to be a purchaser under the sale deed dated 11.04.1973. 3. The petitioner had filed an application before the Assistant Commissioner on 01.04.2005 seeking resumption and restoration claiming that sale deed was executed within the non-alienation period of 20 years which was the prohibition imposed while making the grant. The Assistant Commissioner had by his order dated 26.11.2007 declared the sale transactions to be void and ordered for resumption and restoration. 4. The said order of the Assistant Commissioner was challenged by way of an appeal. The Deputy Commissioner by his order dated 12.10.2009 set aside the order of the Assistant Commissioner, which has been challenged in the present writ petition. The above facts are not in dispute. 5. The other facts that are relevant are that the Writ Petition came to be filed in 2018 challenging the order of the Deputy Commissioner passed on 12.10.2009 and hence, there has been a delay of about nine years in filing of the Writ Petition. The petitioner has relied on the observations made in W.P.No.21229/2004 wherein, the entry in the Saguvali Chit registered at Serial No.113 was dealt with and the Court has observed that the non-alienation period with respect to the grants made at that particular period of time as twenty years.
The petitioner has relied on the observations made in W.P.No.21229/2004 wherein, the entry in the Saguvali Chit registered at Serial No.113 was dealt with and the Court has observed that the non-alienation period with respect to the grants made at that particular period of time as twenty years. The petitioner states that the entry in the Saguvali Chit Register at Serial No.109 pertaining to the present grant in question was contained in the same extract dealt with by this Court and hence, claims that the non-alienation period of twenty years ought to be taken note of. 6. The petitioner has sought to explain the delay in filing of the Writ Petition and states that due to poverty and ignorance, the petition could not be filed in time and has further contended that there has been no sale transaction or creation of third party rights in the intervening period and hence, no prejudice as such would be caused by entertaining the writ petition. The petitioner has further contended that the Deputy Commissioner has erred in accepting the contention of 'no rule period' and has not taken note of the judgment in the case of Munireddy and Others v. The State of Karnataka, Rep. by its Secretary, Department of Revenue and Others, (2010) ILR(Kar) 1703. It is further contended that the contention of the third respondent on the documents produced along with memo dated 11.04.2019 as regards the contention that the petitioner is not related to the grantee ought to be ignored, as the proceedings relating to cancellation of family tree is behind the back of the petitioner and without notice to the petitioner. 7. The final contention of the petitioner is that the judgment in the case of Nekkanti Rama Lakshmi v. State of Karnataka and Another, 2018 ILR(Kar) 1352 and Vivek M. Hinduja and Others v. M.Ashwatha and Others, 2018 1 KarLR 176 (SC) cannot be accepted in a mathematical manner and that the bar of relief where the party has approached the authority beyond a reasonable period of time has to be appreciated in the light of the explanation offered, reasonableness of the explanation and the intervening circumstances.
Hence, it is contended that in the facts of the present case, as no third party rights have been created after the Act has come into force, no prejudice as such would be caused to any party and the delay in approaching the authority cannot be construed so as to non-suit the petitioner. 8. Sri S.S.Naganand, the learned Senior counsel appearing for Sri Yashir Ali for respondent No.3 has contested the contentions of the petitioner on merits and as regards procedural irregularities and also has placed reliance on the judgments in the cases of Nekkanti Rama Lakshmi, Vivek M. Hinduja (both referred to supra) and other judgments of this Court following the judgment of the Apex Court and contends that application seeking restoration made beyond a reasonable period of time cannot be taken note of. 9. It is further contended that in view of the judgment of the Apex Court in Nekkanti Rama Lakshmi's case (supra) and taking note of the fact that the application for restoration came to be filed in 2005, though the Act came into force on 1.1.1979, it was a fit case for the Assistant Commissioner to have rejected the application of the petitioner. Hence, it is contended that even without entering into an adjudication or finding as regards to the contentions on their merits, taking note of the unreasonable period of delay in approaching the authority, the petitioner is not entitled for any relief. 10. It is to be noted that though contentions have been raised on merits including that the Deputy Commissioner has erred in accepting the contention of 'No-Rule period', that the non-alienation period was to be taken as twenty years by relying on the observations made in W.P.No.21229/2004 relating to Saguvali chit extract which contained the entry of grant with respect to Survey No.174, that the petitioner was not the grandson of the grantee by placing reliance on the proceedings on the memo dated 11.4.2019, it would be appropriate to observe that the matter could be disposed of by deciding as to whether principle in the cases of Nekkanti Rama Lakshmi (surpa) as well as Vivek M. Hinduja (supra) to the effect that statutory power cannot be sought to be invoked after an unreasonable period of time.
If the principle laid down by the Apex Court is held to be applicable, the question of adverting to the contentions on merits referred to supra would be a mere academic exercise. 11. It is settled law that the Apex Court in the judgments referred to supra has held that application of the parties under Section 5 of the Act if initiated suo motu must be taken within a reasonable period of time. The Court has held that where application was filed 25 years after the Act had come into force, that such application was preferred after an unreasonably long period of time and held that such application was liable to be dismissed on that ground. The Apex Court has observed that the Act does not specify any period within which an application could be made under Section 5 of the Act, However, after referring the judgment of the Apex Court in the case of Chhedi Lal Yadav and Others v. Hari Kishore Yadav (Dead) Through Legal Representatives and Others, (2018) 12 SCC 527 , order passed in Civil appeal No.3131/2007 decided on 14.7.2011 (Ningappa v. Deputy Commissioner and others) has approved and reiterated the principle that provisions of the statute must be invoked within a reasonable time. In fact, the Court has expressly over ruled the judgments of this Court in (Rudrappa v. Deputy Commissioner, Chitradurga District, Chitradurga and Others, (1999) ILR(Kar) 2683, (Maddurappa v. State of Karnataka, (2006) 4 KarLJ 303 ), all of which had held that there was no limitation provided for under Section 5 of the Act and therefore an application could be made at any time. It is also relevant to note that the Apex Court has referred to the judgment in Manchegowda and others v. State of Karnataka and others, (1984) 3 SCC 301 which had comprehensively dealt with the validity of the Act. 12. In the present case, it is not in dispute that the proceedings were sought to be initiated before the Assistant Commissioner on 1.4.2005 by the petitioner seeking for resumption and restoration contending violation of the provisions of Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. As the Act has come into force on 1.1.1979, the period of delay in seeking to invoke the remedy provided for under the statute was more than 26 years.
As the Act has come into force on 1.1.1979, the period of delay in seeking to invoke the remedy provided for under the statute was more than 26 years. Though it is contended by the petitioner that the law laid down by the Apex Court cannot be mathematically extended without a further enquiry into the reasonableness of delay and its explanation, in the facts of the present case, no case is made out for treating the present case to be different from the facts in the cases of Nekkanti Rama Lakshmi (supra) and Vivek M. Hinduja (supra). The reason sought to be assigned in the belated invoking of statutory remedy to have the sale transaction declared illegal and the land resumed and restored is that the petitioner was ignorant of the rights under the Act and that he was eking out his livelihood by doing coolie work on daily wages cannot be accepted as sufficient reason even if it were to be taken that the Court could look into the explanation regarding reasonableness of delay. The reasons assigned are 'run of the mill' explanation and have been asserted casually. In light of the settled legal position of non-suiting the petitioner by relying on the law laid down by the Apex Court, the question of adjudicating on the merits of the contentions raised, does not arise. 13. It is also to be noted that the writ petition has been filed after a period of delay of nine years. In the mean while, the respondent No.3 has asserted that he had applied for conversion of the land from agricultural to non-agricultural purpose and eventually the order came to be passed on 19.05.2010. Taking note of the said aspect of the matter and also noting that reasons set forth as explanation for delay in filing the Writ Petition in para 6 is also vague and made casually, such explanation cannot be described to constitute sufficient cause so as to condone the laches. Hence, on this ground also, no ground has been made out for exercise of writ jurisdiction to grant equitable remedy sought for by the petitioner. 14. Accordingly, the writ petition is dismissed and the order of the Deputy Commissioner dated 12.10.2009 passed in Appeal No.SC/ST(A)98/2007- 2008 is affirmed.