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2021 DIGILAW 370 (KAR)

Sunandamma v. Deputy Commissioner Bengaluru Rural District

2021-03-05

R.DEVDAS

body2021
ORDER : R. DEVDAS, J. The petitioner who had entered into an agreement to purchase the land in question under a Agreement of Sale dated 29.09.1994, filed a suit before the civil Court seeking a decree of Specific Performance of Contract. The civil Court decreed the suit and thereafter a sale deed was executed through the Court on 21.04.2001, in favour of the petitioner herein. Thereafter, an application came to be filed by respondent No.7 herein before the Assistant Commissioner invoking the provisions of Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (hereinafter referred to as ‘PTCL Act, for short). The Assistant Commissioner noticed that a sale deed dated 21.04.2001 has been executed in favour of the petitioner herein through the Court and it was also an admitted fact that the land in question was acquired by the Karnataka Industrial Areas Development Board’ (for short, ‘KIADB’), by virtue of a notification dated 11.01.1996 and therefore the Assistant Commissioner proceeded to reject the application holding that the petitioner herein is entitled for receiving the compensation at the hands of the KIADB. 2. Learned Counsel for the petitioner submits that respondent No.7 did not preferred an appeal before the Deputy Commissioner, while the other respondents i.e., respondents No.3 to 5 have filed an appeal before the Deputy Commissioner on 01.11.2010, there being a delay of 3 years 10 months. It is therefore contended by the learned Counsel for the petitioner that the Deputy Commissioner was required to consider the application seeking condonation of delay and thereafter only if the Deputy Commissioner was of the opinion that the delay was required to be condoned would he get the jurisdiction to entertain the appeal. 3. Further, it is contended that it is an admitted fact that one Sri. Doddahanumappa was the original grantee, who was granted 8 acres of land in Sy.No.38 of Bhuvanahalli village, Kasaba Hobli, Devanahalli Taluk, on 10.06.1956. After the death of Sri.Doddahanumappa, in a family partition 2 acres and 19 guntas fell to the share of Sri.Edlappa. It is also an admitted fact that Sy.No.38 was assigned new Sy.No.50. Sri.Edlappa executed a sale deed dated 23.06.1984 in favour of his brother Sri. Muni Narayanappa. Sri.Muni Narayanappa executed a power of attorney dated 27.04.1987, in favour of his brother Sri.Edlappa. It is also an admitted fact that Sy.No.38 was assigned new Sy.No.50. Sri.Edlappa executed a sale deed dated 23.06.1984 in favour of his brother Sri. Muni Narayanappa. Sri.Muni Narayanappa executed a power of attorney dated 27.04.1987, in favour of his brother Sri.Edlappa. Thereafter, Sri.Edlappa as a power of attorney holder entered into an agreement with the petitioner herein on 29.09.1994, to sell the property in question i.e., 2 acres 19 guntas in Sy.No.38 (new Sy.No.50). 4. On 11.01.1996, preliminary notification was issued proposing to acquire the lands in question, by KIADB and on 26.09.1997, the petitioner herein filed O.S.No.345/1997, seeking relief of Specific Performance of Contract dated 29.09.1994. The civil Court proceeded to pass a judgment and decree in favour of the petitioner herein on 10.02.1999. Thereafter, an execution petition was filed by the petitioner and the Court proceeded to execute a sale deed on 21.04.2001, in favour of the petitioner. 5. Learned Counsel would further submit that Sri.Muni Narayanappa, who was title holder, along with the petitioner herein filed a Joint Memo dated 15.04.2002, in Misc. Petition No.10/2002, before the Civil Judge (Jr.Dn.) & JMFC., Devanahalli, stating that the respondents i.e., petitioner herein would not enforce the decree in O.S.No.345/1997 and the revenue records with respect to property in question could be changed in favour of Sri.Muni Narayanapapp. In the meanwhile, on 15.04.2002, an application under Section 5 of the PTCL Act, was moved by respondent No.7 herein, i.e., the son of Sri.Edlappa, who had passed away by that time. The Assistant Commissioner came to a conclusion that since the sale deed is executed by virtue of a Court decree and admittedly the land was acquired by the KIADB, unless and until the decree passed by the civil Court is set aside no relief could be granted to the applicant. Consequently, the application was dismissed by order dated 18.12.2006. 6. Learned Counsel for the petitioner submits that after lapse of more than 3 years 10 months, respondents No.3 to 5 preferred an appeal before the Deputy Commissioner calling in question the order passed by the Assistant Commissioner. Learned Counsel submits that an application was also made by the appellants before the Deputy Commissioner seeking leave to file the appeal since they were not parties before the Assistant Commissioner. Learned Counsel submits that an application was also made by the appellants before the Deputy Commissioner seeking leave to file the appeal since they were not parties before the Assistant Commissioner. Learned Counsel submits that the Deputy Commissioner has not passed any specific order on the application seeking leave to file an appeal and application seeking condonation of delay. It is therefore submitted that the impugned order passed by the Deputy Commissioner is without jurisdiction and therefore the same requires to be set aside. 7. Learned Counsel for the petitioner would further submit that in view of the decisions of the Hon’ble Supreme Court in the cases of Nekkanti Rama Lakshmi Vs State of Karnataka and Another, reported in 2017 SCC Online SC 1862 and Vivek M. Hinduja and others Vs. M. Ashwatha and others, reported in 2018 (1) Kar. L.R. 176 (SC), the writ petition is required to be allowed while setting aside the order of the Deputy Commissioner on the ground of delay and laches alone. It is contended that the first sale transaction happened on 23.06.1984, and therefore from such date the application being filed on 15.04.2002, after a delay of about 18 years, the application was required to be rejected on the ground of delay and laches. 8. Per contra, learned Counsel Sri. K G Sadashivaiah, appearing for respondents No.3, 4 and 7 submits that the decisions cited by the learned Counsel for the petitioner on the question of delay and laches are not applicable to the facts and circumstances of this case. It is submitted that although the first sale transaction is dated 23.06.1984, it is a transaction between two brothers and subsequently the brother in whose favour the sale deed was executed i.e., Sri.Muni Narayanappa has executed a General Power of Attorney in favour his brother Sri.Edlappa, which clearly shows that the sale transaction was a nominal sale transaction. Moreover, Sri.Edlappa had no occasion to challenge the sale transaction since, the transaction was between brothers and they have insisted that the sale transaction was only a nominal sale transaction. The cause of action for respondent No.7 to approach the Assistant Commissioner arose only after the sale agreement was entered into between the petitioner herein and Sri.Edlappa, on 29.09.1994. Even otherwise, since no sale deed was executed, there was no occasion to file an application before the Assistant Commissioner. The cause of action for respondent No.7 to approach the Assistant Commissioner arose only after the sale agreement was entered into between the petitioner herein and Sri.Edlappa, on 29.09.1994. Even otherwise, since no sale deed was executed, there was no occasion to file an application before the Assistant Commissioner. It is therefore submitted that the cause of action for filing the application before the Assistant Commissioner commences only on 21.04.2001, when the Court executed a sale deed in favour of the petitioner herein. It is therefore submitted that from 21.04.2001, the application has been filed well within a reasonable time i.e., within one year from the date of execution of the sale deed and therefore the question of delay and laches do not apply in the facts and circumstances of this case. 9. Heard the learned Counsels and perused the petition papers. 10. As rightly submitted by the learned Counsel for respondents No.3. 4 and 7, the decisions of the Hon’ble Supreme Court in the cases of Nekkanti Rama Lakshmi and Vivek M. Hinduja and others (supra) do not apply to the facts and circumstances of the present case. Although the learned Counsel for the petitioner insists that the first sale transaction having been taken place on 23.06.1984, the cause of action for filing the application commences on that day cannot be accepted. In the normal circumstances, the cause of action would arise from the date when the first sale transaction occurs. However, in the facts and circumstances of the present case, where a sale deed is said to have been executed by Sri.Edlappa in favour of his brother Sri.Muni Nayaranappa on 23.06.1984, it is required to be considered as a nominal sale transaction. Sri.Edlappa had no occasion to call in question the sale deed executed in favour of his brother. The cause of action commences when the civil Court executed a sale deed dated 21.04.2001, in favour of the petitioner herein. In that view of the matter, there is no delay and therefore the decisions cited by the learned Counsel for the petitioner would not be applicable to the facts and circumstances of this case. 11. The cause of action commences when the civil Court executed a sale deed dated 21.04.2001, in favour of the petitioner herein. In that view of the matter, there is no delay and therefore the decisions cited by the learned Counsel for the petitioner would not be applicable to the facts and circumstances of this case. 11. The contention of the learned Counsel for the petitioner that the Deputy Commissioner was duty bound to consider the applications filed by the respondents No.3 to 5 herein as ‘appellants’, before the Deputy Commissioner seeking leave of the authority to permit the appellants to file the appeal since, they were not parties before the Assistant Commissioner and to condone the delay in filing the appeal, are required to be examined. The decision of the Deputy Commissioner to consider the appeal on its merits would show that the leave has been granted. On the question that a formal order was required to be passed on the application for condonation of delay, though justified, however, this Court has held that in proceedings before the quasi-judicial authorities, strict adherence to the provisions of procedural law, although necessary, but non-adherence has been held as judicial improprieties, which could be ignored. Even otherwise, if this Court would come to a conclusion that the order passed by the appellate authority is sound on the reasoning, the minor discrepancies could be ignored. 12. It was also pointed out that the petitioner herein had not pressed for a decision of the appellate authority on the applications made by respondents No.3 to 5 herein. 13. More importantly, it is required to be notice that both the authorities have not considered the provisions of Sections 4(3) and 11 and the definition of the word ‘transfer’ as defined in the Act. Section 11 of the Act has the effect of overriding all other laws. Section 4(3) provides that the provisions of sub-sections (1) and (2), prohibiting the transfer of granted land and declaration that all such transactions would be null and void and no right, title or interest in such land shall be conveyed or be deemed ever to have conveyed by such transfer, would apply also to the sale of any land in execution of a decree or order of a civil Court or of any award or order of any other authority. In this regard it would be profitable to notice that this Court in the case of Linge Gowda Vs. Deputy Commissioner, reported in ILR 1992 Kar. 209, while considering the effect of the proviso to Section 4(3) of the PTCL Act, the definition of the word ‘transfer’ as defined under the Act and considering the overriding effect of Section 11 of the Act, has held that from conjoint reading of the above provisions, it is abundantly clear that even the sale of the granted land by the Court in public auction is prohibited and such a sale would amount to transfer of granted land in contravention of the terms of the grant of such land. In the instant case, as already pointed out the civil Court passed a decree and thereafter executed the Sale Deed in favour of the petitioner herein. Such a sale is clearly hit by the provisions of the Act. 14. That being the case, both the authorities have not bestowed their attention to the declarations of law made by this Court, not only in the case of Linge Gowada (supra) but also in all other subsequent judgments. 15. The parties are agitating their rights to receive compensation at the hands of the KIADB, which has acquired the lands in question. No useful purpose would be served if the matter is remanded back to the Deputy Commissioner for his decision on the two applications, which were made by respondents No.3 to 5 herein seeking leave to file the appeal and for condonation delay in filing the appeal. As held by this Court and by the Hon’ble Supreme Court, this being a beneficial legislation, the procedural irregularities are required to be ignored while Courts are called upon to consider the cases on their merits and substantial provisions of law. In that view of the matter, this Court finds that the contentions raised by the learned Counsel for the petitioner that the Deputy Commissioner being an appellate authority has not considered the two applications and therefore he did not get jurisdiction to entertain the appeal and pass orders is hereby rejected. 16. In that view of the matter, this Court finds that the contentions raised by the learned Counsel for the petitioner that the Deputy Commissioner being an appellate authority has not considered the two applications and therefore he did not get jurisdiction to entertain the appeal and pass orders is hereby rejected. 16. Having considered the matter on its merits, this Court finds that the cause of action in the peculiar facts and circumstances of this case arises to the legal heirs of Doddahanumappa only on 21.04.2001, when the civil Court executed a sale deed in favour of the petitioner herein. Having regard to the same, the applications filed before the Assistant Commissioner is well within reasonable time. The appeal preferred before the Deputy Commissioner, where there was a delay of around 3 years 10 months would any way have been condoned by the Deputy Commissioner keeping the beneficial provisions of the Act in mind. While dealing with the provisions of this Act, the Hon’ble Supreme Court in the case of Satyan Vs. Deputy Commissioner and others, reported in 2019 SCC Online SC 710, has held that the delay of 8 years would not be such that it could be held it is unreasonable. Therefore, the delay in filing the appeal before the Deputy Commissioner is also required to be condoned. 17. For the reasons stated above, the writ petition stands dismissed. The legal heirs of Sri.Doddahanumappa are entitled to claim the compensation from the KIADB as directed by the Deputy Commissioner in the impugned order. 18. At this juncture, learned Counsel for the petitioner prays that this order may be stayed for a period of four weeks to enable the petitioner to prefer an appeal. Therefore, respondents No.3 to 7 are hereby directed not to precipitate the matter for a period for four weeks. Ordered accordingly.