Dismissed

Sri Muniya @ Muniyappa v. the Special Deputy Commissioner

Karnataka HC3 Jul 2019WA/373/2019

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed four writ appeals challenging the dismissal of applications for resumption of granted land under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. The court held that a delay of 27 years rendered the applications time-barred within a reasonable time, relying on the Supreme Court's ruling in Nekk

What did the court decide?

The appeals were dismissed with no order as to costs. Pending interlocutory applications were disposed of.

Sri Muniya @ Muniyappa Vs the Special Deputy Commissioner — Land Acquisition | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF JULY, 2019

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PRESENT

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THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE

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AND

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THE HON’BLE MR. JUSTICE H.T. NARENDRA PRASAD

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WRIT APPEAL NO.372/2019 (SCST) C/W WRIT APPEAL NO.373/2019 (SCST), WRIT APPEAL NO.374/2019 (SCST) AND WRIT APPEAL NO.375/2019 (SCST)

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IN W.A.NO.372/2019 BETWEEN:

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SRI MUNIMADA @ MUNIMADAPPA S/O LATE VENKATA SINCE DECEASED REP. BY HIS LRS SRI GUPALAPPA S/O LATE MUNIMADA @ MUNIMADAPPA AGED ABOUT 68 YEARS R/AT BALLUR VILLAGE ATTIBELE HOBLI, ANEKAL TALUK BANGALORE DISTRICT-562 106

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... APPELLANT

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(BY SRI DHYAN CHINNAPPA, SENIOR COUNSEL A/W SRI GOWTHAMDEV C. ULLAL, ADVOCATE)

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AND :

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THE SPECIAL DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT BANGALORE-560 009

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THE ASSISTANT COMMISSIONER BANGALORE URBAN DISTRICT BANGALORE-560 009

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SRI ALLELLAPPA S/O LATE CHOODAPPA DASANAPURA VILLAGE ATTIBELE HOBLI ANEKAL TALUK-562 106

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SRI NARAYANA REDDY S/O LATE CHIKKANAGI REDDY NO.170, TVS ROAD BALLUR VILLAGE ATTIBELE HOBLI ANEKAL TALUK

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... RESPONDENTS

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(BY SRI S H PRASHANTH, AGA FOR R-1 & 2; SRI GANAPATHI BHAT VAJRALLI, ADVOCATE FOR R-3 & 4)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 12/12/2018 IN W.P.NO. 17706/2010 AND ETC.

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IN W.A.NO.373/2019 BETWEEN:

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SRI MUNIYA @ MUNIYAPPA S/O LATE CHIKKA SINCE DECEASED REP. BY HIS LRS

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SRI M VENKATESH S/O LATE MADANAGIRIYAPPA AGED ABOUT 32 YEARS

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SMT. MANJULA D/O LATE MADANAGIRIYAPPA AGED ABOUT 28 YEARS

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SMT. SHYLAJA D/O LATE MADANAGIRIYAPPA AGED ABOUT 24 YEARS

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R/AT BALLUR VILLAGE ATTIBELE HOBLI, ANEKAL TALUK BANGALORE DISTRICT-562 106

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... APPELLANTS

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(BY SRI DHYAN CHINNAPPA, SENIOR COUNSEL A/W SRI GOWTHAMDEV C. ULLAL, ADVOCATE)

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AND :

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THE SPECIAL DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT BANGALORE-560 009

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THE ASSISTANT COMMISSIONER BANGALORE URBAN DISTRICT BANGALORE-560 009

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SRI VENKATA REDDY S/O CHANGA REDDY AGED MAJOR, R/AT NO.326/20 24TH CROSS, 6TH BLOCK JAYANAGAR BANGALORE-560 082

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... RESPONDENTS

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(BY SRI S.H. PRASHANTH, AGA FOR R-1 & 2; SRI GANAPATHI BHAT VAJRALLI, ADVOCATE FOR R-3)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 12/12/2018 IN W.P. NO.26019/2010 [SC&ST] AND ETC.

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IN W.A.NO.374/2019 BETWEEN:

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SRI BUDDIGA S/O LATE BALLURA @ BALLURAPPA SINCE DECEASED REP. BY HIS LRS

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SRI NARAYANAPPA S/O LATE BATTAPPA AGED ABOUT 53 YEARS R/AT BALLUR VILLAGE ATTIBELE HOBLI ANEKAL TALUK BANGALORE DISTRICT-562 106

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... APPELLANT

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(BY SRI DHYAN CHINNAPPA, SENIOR COUNSEL A/W SRI GOWTHAMDEV C. ULLAL, ADVOCATE)

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AND :

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THE STATE OF KARNATAKA BY ITS SECRETARY REVENUE DEPARTMENT M.S.BUILDING, VIDHANA SOUDHA BANGALORE-01

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THE SPECIAL DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT BANGALORE-09

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THE ASSISTANT COMMISSIONER BANGALORE URBAN DISTRICT BANGALORE-09

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SRI J.K.SHARMA S/O J.P.SHARMA AGED MAJOR, R/AT NO.A-1, 102 PACHIM VIHAR, NEW DELHI-63

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PRESENTLY RESIDING AT: NO.243, ATTIBELE, MATTIKERE JVS MAIN ROAD, PROPRIETOR

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CHETAK LOGISTIC LIMITED NEAR SWAMY NURSERY BALLUR VILLAGE ATTIBELE HOBLI ANEKAL TALUK-560 099

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... RESPONDENTS

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(BY SRI S.H. PRASHANTH AGA FOR R-1 TO 3; SRI GANAPATHI BHAT VAJRALLI, ADVOCATE FOR R-4)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 12/12/2018 IN W.P.NO.27733/2011 AND ETC.

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IN W.A.NO.375/2019 BETWEEN:

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SRI RAMA S/O LATE BALLURA @ BALLURAPPA SINCE DECEASED REP. BY HIS LRS SRI NARAYANAPPA S/O LATE VATTAPPA AGED ABOUT 60 YEARS R/AT BALLUR VI ATTIBELE HOBLI, ANEKAL TALUK BANGALORE DISTRICT-562 106

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... APPELLANT

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(BY SRI DHYAN CHINNAPPA, SENIOR COUNSEL A/W SRI GOWTHAMDEV C. ULLAL, ADVOCATE)

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AND :

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THE SPECIAL DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT BANGALORE-560 009

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THE ASSISTANT COMMISSIONER BANGALORE URBAN DISTRICT BANGALORE-560 009

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SRI ALLELLAPPA S/O LATE CHOODAPPA DASANAPURA VILLAGE ATTIBELE HOBLI ANEKAL TALUK-562 106

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SRI R RAJU S/O LATE RANGADHAMAIAH AGED ABOUT 44 YEARS NO.12/1, SURVEYOR STREET BASAVANAGUDI BANGALORE-560 004

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... RESPONDENTS

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(BY SRI S.H.PRASHANTH, AGA FOR R-1 & 2; SRI GANAPATHI BHAT VAJRALLI, ADVOCATE FOR R-3; SERVICE OF NOTICE TO R-4 IS ACCEPTED V/O DATED 23.04.2019)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 12/12/2018 IN W.P. NO.17705/2010 AND ETC.

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THESE WRIT APPEALS COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals arise out of the proceedings of the applications made by the appellants or their predecessors by invoking Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short ‘the said Act’). The contention raised by the appellants or their predecessors in the applications made to the

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Assistant Commissioner under Section 5 of the said Act was that there was an alienation of the lands granted to them or their predecessors in contravention of the terms of the grant which is hit by sub-section (1) of Section 4 of the said Act and therefore, the same is null and void. Hence, the applications were made under Section 5 of the said Act for resumption of possession of the subject lands from the transferees. The Assistant Commissioner passed the orders of resumption of the subject lands. In the appeals preferred under Section 5-A of the said Act, the orders of the Assistant Commissioner were set aside. The contesting respondents challenged the said order by filing writ petitions before the learned Single Judge. By the impugned common judgment and order, the learned Single Judge held that the order of the Special Deputy Commissioner allowing the appeals does not call for interference on the ground that the applications were made under Section 5 of the said Act in the year 2006 after long lapse of 27 years after the said Act came into force on 1^st January 1979. The learned Single Judge also observed that there was an inordinate delay even from the date of the alleged alienation till the date of filing of the applications. The learned Single Judge relied upon a recent decision of the Apex Court in the case of NEKKANTI RAMA LAKSHMI vs STATE OF

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KARNATAKA AND ANOTHER¹ . The said decision holds that the application under Section 5 of the said Act has to be made within a reasonable time.

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The learned Senior Counsel appearing for the appellants submitted that in the cases in hand, in the documents under which the grants were made to the appellants or their predecessors, there was a permanent prohibition on alienation and the prohibition on alienation was not restricted to a specific period. He submitted that in the decision of the Apex Court in the case of Nekkanti Rama Lakshmi ( supra ), this issue has not been agitated. He further submitted that a distinction will have to be made between the cases where the bar of alienation is for a specific period and the cases where there is a permanent bar on alienation as per the terms and conditions of the grant or the law under which it is granted.

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In addition to the aforesaid submissions which are common in all these appeals, in the facts of W.A.No.374/2019, he pointed out that the finding recorded by the Assistant Commissioner while dealing with the application made under Section 5 of the said Act is that there was no alienation made by

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1 2018(1) Kar.L.R 5 (SC)

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Sri Buddiga, who is the original grantee. He submitted that in fact, there is a clear finding recorded that the contention raised by the grantee that he has made an alienation in favour of one Muniswamyreddy cannot be accepted as no document is available in that behalf. His submission is that in this case, as found by the Assistant Commissioner which is not disturbed by the Deputy Commissioner and the learned Single Judge, there was no alienation by the original grantee and the alienation is by a third party by executing a sale deed dated 1^st November 1954. There are subsequent sale deeds on the basis of the sale deed dated 1^st November 1954 executed by the transferee. He would, therefore, submit that considering the language used by Section 4, even such transfer by a third party in violation of sub-section (1) of Section 4 will become null and void. He submitted that as the alienation is not made by the grantee himself, his case stands on a different footing from the other cases.

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We have given careful consideration to the submissions. Perusal of Section 4 of the said Act will show that sub-section (1) which starts with a non obstante clause declares certain transfers as null and void. For ready reference, Section 4 is quoted, which reads thus:

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“ 4. Prohibition of transfer of granted lands.- (1)Notwithstanding anything in any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or the law providing for such grant, or sub-section (2) shall 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.

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(2) No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government.

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(3) The provisions of sub-sections (1) and (2) shall 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.”

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Then comes Section 5, which reads thus:

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“ 5. Resumption and restitution of granted lands. - (1) Where, on application by any interested person or on information given in writing by any person or suo motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4, he may.-

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(a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed:

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Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard;

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(b) restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir, such land shall be deemed to have vested in the Government free from all encumbrances. 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.

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(1-A) After an enquiry referred to in subsection (1) the Assistant Commissioner may, if he is satisfied that transfer of any granted land is not null and void pass an order accordingly.

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(2) Subject to the orders of the Deputy Commissioner under Section 5-A, any order passed under sub-sections (1) and (1-A) shall be final and shall not be questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by the Assistant Commissioner in pursuance of any power conferred by or under this Act.

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(3) For the purposes of this section, where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null

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and void under the provisions of sub-section (1) of Section 4.”

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Section 5 confers a power on the Assistant

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Commissioner of passing an order of taking possession of the land, the alienation of which is null and void as per sub-section (1) of Section 4. In such a case, the Assistant Commissioner can exercise the power of evicting all persons found in possession of the granted land.

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Before passing an order under Section 5, the Assistant Commissioner must be satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4. Sub-section (1) of Section 5 provides a remedy to any interested person to apply to the Assistant Commissioner for exercising powers of resumption of the granted lands. The power can also be exercised suo motu.

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Now we turn to the decision of the Apex Court in the case of Nekkanti Rama Lakshmi ( supra ). Paragraph 8 of the said decision reads thus:

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“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

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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 & Ors. vs. Hari Kishore Yadav (D) Thr. Lrs. & Ors., 2017 (6) SCALE 459 and also in the case of Ningappa vs. Dy. Commissioner & Ors. (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) Karnataka Law Journal, 523, Maddurappa vs. State of Karnataka, 2006 (4) Karnataka Law Journal, 303 and G. Maregouda vs. The Deputy Commissioner, Chitradurga District, Chitradurga and Ors, 2000(2) Kr. L.J.Sh. N.4B 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.”

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(Underlines supplied)

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Careful perusal of paragraph 8 shows that the Apex Court has observed that Section 5 does not prescribe any period within which an application can be made by an interested party for seeking resumption. It also notes that it does not prescribe any period within which suo motu action under sub-section (1) can be taken. The Apex Court reiterated the law laid down in its earlier decision in CHHEDI LAL YADAV AND OTHERS vs HARI KISHORE YADAV (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS² . The Apex Court held that when the statute does not provide for a period of limitation, the provisions of the statute must be invoked within a reasonable time. The Apex Court also held that in such a case, whether on the application of the parties or suo motu , action must be taken within a reasonable time. As the Apex Court has relied upon the earlier decision in the case of CHHEDI LAL YADAV ( supra) , we must make a reference to the said decision. This was a case arising under an enactment of State of Bihar which provided for restoration of possession. The issue before the Apex Court was whether making an application for restoration of a land after a period of 24 years from the date of enactment can be said to be

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2 (2018) 12 SCC 527

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an action taken within a reasonable time. In paragraph 13 of the said decision, the Apex Court held thus:

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“ 13. In our view, where no period of limitation is prescribed, the action must be taken, whether suo motu or on the application of the parties, within a reasonable time. Undoubtedly, what is reasonable time would depend on the circumstances of each case and the purpose of the statute. In the case before us, we are clear that the action is grossly delayed and taken beyond reasonable time, particularly, in view of the fact that the land was transferred several times during this period, obviously, in the faith that it is not encumbered by any rights.”

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(Underlines supplied)

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We must note that in paragraph 12 of the said

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decision, the Apex Court also dealt with an argument that the power of restoration under the statute could be exercised suo motu and as no limitation is prescribed, when action is taken suo motu , the delay has to be overlooked. Even the said contention was negatived by the Apex Court by relying upon its earlier decision in the case of COLLECTOR vs D.NARSING RAO³ .

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Another argument which was negatived in the case of CHHEDI

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3 (2015) 3 SCC 695

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LAL YADAV ( supra) was that as the legislation which provided for restoration or resumption is a beneficial legislation, the rights acquired by persons in contravention of the legislation cannot be ignored lightly. Even the said argument is negatived by the Apex Court in paragraph 14.

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Therefore, in our considered view, the issue whether the grant provided a clause providing a permanent embargo on the alienation or whether it provided for an embargo on alienation for a limited period may not be relevant at all while we apply the law laid down by the Apex Court in the case of Nekkanti Rama Lakshmi ( supra ) . What is held by the Apex Court is that the remedy under Section 5 must be taken recourse to within a reasonable time. Therefore, irrespective of the fact whether the prohibition on alienation was for a limited period or whether there was a permanent prohibition on alienation, the law laid down by the Apex Court in the said decision will squarely apply.

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In all the four cases in hand, apart from the gross delay from the date of alienation till the date of making the applications, admittedly, the applications under sub-section (1) of Section 5 were made after lapse of about 27 years from the date on which the said Act came into force. By no stretch of

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imagination it can be said that the delay of 27 years is not unreasonable. Therefore, we concur with the view taken by the learned Single Judge, which is consistent with the law laid down by the Apex Court.

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Now coming to W.A.No.374/2019, even assuming

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that sub-section (1) of Section 4 applies to any transfer and not only to the transfer effected by the grantee, still the application under sub-section (1) of Section 5 will have to be made within a reasonable time. In this case also, the application was made 27 years after the said Act came into force. The first two sale deeds were of the date prior to the date on which the said Act came into force. Notwithstanding the rejection of the application under subsection (1) of Section 5, the contention of the appellant that his predecessor had not alienated the said property remains open which can be always agitated by filing an appropriate proceeding, if permissible at this stage, in accordance with law.

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Hence, we find no merit in the appeals. Subject to what is observed in relation to the case of the appellant in W.A.No.374/2019, the appeals are dismissed. There would be no order as to costs.

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The pending interlocutory applications do not survive and are accordingly disposed of.

Sd/-

CHIEF JUSTICE

Sd/JUDGE

bkv