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2019 DIGILAW 2360 (KAR)

V. Narayanappa v. State of Karnataka

2019-12-20

K.NATARAJAN

body2019
ORDER : 1. This petition is filed by the petitioner challenging the order passed by the Assistant Commissioner-respondent No.3 dated 12.12.2012 vide Annexure-E, which was confirmed by the Deputy Commissioner-respondent No.2 dated 16.06.2014 vide Annexure-G for having restored the land in favour of respondent Nos. 5 and 6 who are the legal representatives of grantee. 2. Heard the learned counsel for the petitioner, learned HCGP for respondent Nos.l to 4 and learned counsel for respondent Nos. 5 and 6. 3. The case of the petitioner is that the land in Sy.No. 107/2 measuring 1 acre 27 guntas was owned and in possession by the deceased petitioner Sri V.Narayanappa and the land in Sy.No. 118 measuring 1acre 28 guntas was granted to the father of respondent Nos.5 and 6 K.Venkatarayappa by the Government on 25.05.1978 with a condition not to alienate the same for 15 years. However, the said K.Venkatarayappa who is the father of respondent Nos.5 and 6 have entered into sale with the deceased petitioner and sold the land in Sy.No. 118 measuring 1 acre 28 guntas in favour of the deceased petitioner on 25.04.1985. 4. Learned counsel for the petitioner contended that though the land was sold to the petitioner by the K.Venkatarayappa, but it was exchanged by selling his own land measuring 1 acre 27 guntas in Sy.No. 107/2 in the name of Parvathamma who is the wife of K.Venkatarayappa and mother of respondent Nos.5 and 6 on the same day i.e., on 25.04.1985. It is further contended that both the lands got exchanged each other for their convenience and executed on the same day. Respondent Nos.5 and 6 filed an application for restoration of the land before the Assistant Commissioner in the year 2010 and the same was restored in the year 2012 and even the Deputy Commissioner confirmed the same in the year 2014. It is further contended that filing of the application itself is after 25 years of the very sale deed effected. There is inordinate delay in filing the restoration application, which is not sustainable. In view of the judgments of the Hon'ble Apex Court in Nekkanti Rama Lakshmi vs. State of Kamataka and Another, 2018 (1) Kar. L.R. 5 (SC), Vivek M. Hinduja and Others vs. M. Ashwatha and Others, 2018 (1) Kar. L.R. 176 (SC) and Chhedi Lal Yadav and Others vs. Hari Kishore Yadav (D) through LRs. In view of the judgments of the Hon'ble Apex Court in Nekkanti Rama Lakshmi vs. State of Kamataka and Another, 2018 (1) Kar. L.R. 5 (SC), Vivek M. Hinduja and Others vs. M. Ashwatha and Others, 2018 (1) Kar. L.R. 176 (SC) and Chhedi Lal Yadav and Others vs. Hari Kishore Yadav (D) through LRs. and Others, 2018 (1) Kar. L.R. 1 (SC) and also the Division Bench of this Court in the case of Ningamma and the Tibetian Children's Village and Others in W.A.No.4092/2017 decided on 09.04.2019 has set aside the order of restoration for delay of 12 years in taking action by there venue authorities. Hence, prayed for allowing the appeal. 5. Per contra, learned counsel for respondent Nos.5 and 6 supports the order passed by the Deputy Commissioner and learned HCGP though supported the order passed by the Deputy Commissioner as well as Assistant Commissioner, however, fairly admits that there is a delay of 25 years in filing the restoration application and with regard to sale is concerned it is contended that either it is the sale deed or exchange of land, it is subsequent to the commencement of the PTCL Act in the year 1979. The exchange or sale deed was effected in the year 1985. The permission of the Government under Section 4(2) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (hereinafter referred to as 'PTCL Act' for short) is mandatory. Hence, prayed for dismissal of the writ petition. 6. Upon hearing the arguments of learned counsel for the parties and on perusal of the record, the points that arises for consideration is: "Whether the order of restoration or taking action by the authorities are sustainable in view of delay of 25 years in filing the restoration application?" 7. On perusal of the record, it is an admitted fact that the land in Sy.No.118 measuring 1 acre 28 guntas was granted to one K.Venkatarayappa who is the father of respondent Nos.5 and 6 on 25.05.1978 with a condition not to alienate the granted land for 15 years. In view of the commencement of PTCL Act with effect from 01.01.1979 and as per Section 4(2) of the PTCL Act the granted land under the PTCL Act after commencement of the Act, permission of the Government is mandatory. In view of the commencement of PTCL Act with effect from 01.01.1979 and as per Section 4(2) of the PTCL Act the granted land under the PTCL Act after commencement of the Act, permission of the Government is mandatory. Any alienation either by sale deed or exchange whatsoever means is void, which hit by Section 4(2) of the PTCL Act. Admittedly, the sale-deed executed in favour of deceased petitioner was on 25.04.1985. It is the violation of condition of grant rules and violation of Section 4(2) of the PTCL Act. Though, the petitioner able to show that the land in Sy.No. 107/2 was sold to the wife of K.Venkatarayappa, who is the mother of respondent Nos.5 and 6 on the same day i.e., on 25.04.1985 and both the sale deeds goes to show that it is in exchange of land between the parties. However, as per Section 3(l)(e) of the PTCL Act transfer means a sale, gift, exchange, mortgage (with or without possession), is also a transfer under the provisions of PTCL Act. Therefore, even though, it is an exchange of land between the deceased petitioner and the family of respondent Nos.5 and 6, but exchange also hit by Section 4(2) of the PTCL Act. However, there is violation of Section 4(2) of the PTCL Act, but the application was filed by the grantees in the year 2010 for restoration before the Assistant Commissioner and the order was passed in the year 2012. There is a delay of 25 years in initiating action in respect of the sale deed effected in the year 1985. The Hon’ble Apex Court in the case of Nekkanti Rama Lakshmi, at paragraph No.8 of the judgment has held as under: "8. However, the question that arises is with regard to terms of Section 5 of the Act which enables any interested person to make an application for having the transfer annulled as void under Section 4 of the Act. This Section does not prescribe any period within which such an application can be made. Neither does it prescribe the period within which suo motu action may be taken. This Court in the case of Chhedi Lal Yadav and Others vs. Hari Kishore Yadav (D) through LRs. and Others, 2017 (6) SCALE 459 and also in the case of Ningappa vs. Dy. Neither does it prescribe the period within which suo motu action may be taken. This Court in the case of Chhedi Lal Yadav and Others vs. Hari Kishore Yadav (D) through LRs. and Others, 2017 (6) SCALE 459 and also in the case of Ningappa vs. Dy. Commissioner and Others (C.A. No. 3131 of 2007, decided on 14.07.2011) reiterated a settled position in law that whether Statute provided for a period of limitation, provisions of the Statute must be invoked within a reasonable time. It is held that action whether on an application of the parties, or suo motu, must be taken within a reasonable time. That action arose under the provisions of a similar Act which provided for restoration of certain lands to farmers which were sold for arrears of rent or from which they were ejected for arrears of land from 1st January, 1939 to 31st December, 1950. This relief was granted to the farmers due to flood in the Kosi River which make agricultural operations impossible. An application for restoration was made after 24 years and was allowed. It is in that background that this Court upheld that it was unreasonable to do so. We have no hesitation in upholding that the present application for restoration of land made by respondent-Rajappa was made after an unreasonably long period and was liable to be dismissed on that ground. Accordingly, the judgments of the Karnataka High Court, namely: R. Rudrappa vs. Deputy Commissioner, 2000 (1) Kar. L.J. 523, Maddurappa vs. State of Karnataka, 2006 (4) Kar. L.J. 303 and G. Maregouda vs. The Deputy Commissioner, Chitradurga District, Chitradurga and Others, holding that there is no limitation provided by Section 5 of the Act and, therefore, an application can be made at any time, are overruled. Order accordingly." 8. The Hon’ble Apex Court in the cases of Vivek M. Hinduja and Chhedi Lal Yadav (supra), it is held that if there is any inordinate delay in taking the action by the authorities after 20 to 25 years, the order of restoration is not sustainable. Even the same principle would apply to suo motu proceedings initiated by the authorities. 9. The Hon’ble Apex Court in the cases of Vivek M. Hinduja and Chhedi Lal Yadav (supra), it is held that if there is any inordinate delay in taking the action by the authorities after 20 to 25 years, the order of restoration is not sustainable. Even the same principle would apply to suo motu proceedings initiated by the authorities. 9. Based on the above said judgments, the Division Bench of this Court in Ningamma's case, where in the said case there was a delay of 12 years and this Court has set aside the order of restoration and upheld the order of learned Single Judge. Subsequently, the Division Bench of this Court in Sri. Munimada @ Munimadappa vs. The Special Deputy Commissioner and Others in W.A. No. 372/2019 and other connected matters decided on 03.07.2019 has upheld the judgment of the Co-ordinate Bench of this Court and dismissed the appeal against the order of learned Single Judge who set aside the order of restoration passed by the authorities. 10. In view of inordinate delay and laches and principles laid down by the Hon’ble Apex Court, the decision taken by the authorities is not sustainable. Hence, the orders of the Assistant Commissioner as well as the Deputy Commissioner are liable to be set aside. 11. Accordingly, the writ petition is allowed. 12. The orders dated 12.12.2012 and 16.06.2014 passed by the Assistant Commissioner and Deputy Commissioner vide Annexure-E and G are hereby set aside.