Allowed

Smt. K. Parvathamma v. the State of Karnataka

Karnataka HC5 Jun 2023WP/146/2017

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by a subsequent purchaser to quash a restoration order. The Court held that a gross delay of 21 years in seeking restoration under the PTCL Act bars the application, protecting the rights of the subsequent purchaser who relied on public documents.

What did the court decide?

The writ petition is allowed and the impugned order dated 09.11.2016 passed by the Deputy Commissioner is quashed.

Smt. K. Parvathamma Vs the State of Karnataka — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:19041 WP No. 146 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 146 OF 2017 (SCST)

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BETWEEN:

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SMT. K. PARVATHAMMA, AGED ABOUT 52 YEARS, W/O SRI. J O CHENNAKESHAVA, R/O BEHIND POLICE STATION, PARASHURAMPURA TOWN, PARASHURAMPURA, CHALLAKERE TALUK, CHITRADURGA DISTRICT - 577 528.

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…PETITIONER

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(BY SRI. RAMA BHAT K, ADVOCATE)

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AND:

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Digitally signed by LAKSHMINARAYAN N Location: High Court of Karnataka

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THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, VIDHANA SOUDHA, DR. AMBEDKAR VEEDHI, BENGALURU - 560 001.

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THE DEPUTY COMMISSIONER, CHITRADURGA DISTRICT, CHITRADURGA - 577 501.

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NC: 2023:KHC:19041 WP No. 146 of 2017

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THE ASST. COMMISSIONER, CHITRADURGA SUB DIVISION, OFFICE OF THE ASST. COMMISSIONER, CHITRADURGA - 577 501.

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SRI. B ERAPPA, AGED ABOUT MAJOR, S/O LATE PEDDA BHEEMAIAH,

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SRI. B SANJEEVAIAH, AGED ABOUT MAJOR, S/O LATE PEDDA BHEEMAIAH,

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NO. 4 & 5 ARE RESIDENTS OF HULLIKATTE VILLAGE, BHOVI COLONY, PARASHURAMPURA HOBLI, CHALLAKERE TALUK CHITRADURGA DISTRICT.

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PRESENTLY AT NO.979, 'DRUGA NILAYA', 49TH MAIN ROAD, 46TH CROSS ROAD, IST STAGE, KUMARASWAMY LAYOUT BENGALURU - 560 078.

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SMT. ERAMMA, AGED ABOUT MAJOR, W/O LATE OBALESH,

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SRI. SANNA PAPAIAH, AGED ABOUT MAJOR, S/O LATE OBALESH,

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SMT. NAGARATHNAMMA, AGED ABOUT MAJOR, D/O LATE OBALESH,

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SRI. T O SRINIVAS, AGED ABOUT MAJOR, S/O LATE OBALESH,

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SMT. T O KAVYA, AGED ABOUT MAJOR, D/O LATE OBALESH,

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NO. 6 TO 10 ARE RESIDENTS OF PARASHURAMPURA VILLAGE, PARASHURAMPURA HOBLI, CHALLAKERE TALUK, CHITRADURGA DISTRICT - 577 528.

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…RESPONDENTS

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(BY SRI. VENKAT SATYANARAYANA, HCGP FOR R1 TO R3; SRI. NARASIMHAIAH K, ADVOCATE FOR C/R4; SRI. A RAJESH, ADVOCATE FOR R5 (VAKALAT FILED); R6 AND R7 - SERVED; VIDE ORDER DATED 18.09.2017 NOTICE TO R8 IS HELD SUFFICIENT;

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VIDE ORDER DATED 03.09.2019 NOTICE TO R9 IS DISPENSED WITH; R10 SERVED)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE IMPUNGED ORDER DATED 9.11.2016 PASSED BY THE DEPUTY COMMISSIONER, CHITRADURGA DISTRICT AS PER ANNEX-A. GRANT AN INTERIM ORDER TO STAY THE OPERATION AND EXECUTION OF THE IMPUGNED ORDER DATED 9.11.2016 PASSED BY THE DEPUTY COMMISSIONER, CHITRADURGA DISTRICT AS PER ANNEX-A AND ETC.,

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NC: 2023:KHC:19041 WP No. 146 of 2017

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The captioned writ petition is filed by the subsequent purchaser questioning the order of restoration passed by respondent No.2/Deputy Commissioner who has entertained the appeal filed after lapse of 21 years.

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Before I advert to the facts of the present case, it would be useful to refer to the judgments rendered by the Apex Court on this issue in Nekkanti Rama Lakshmi .vs. State of Karnataka and another¹ and Vivek M. Hinduja .vs. M. Aswatha² . It would be also useful to refer to the judgment rendered by a Co-Ordinate Bench of this Court in W.P.No.50446 of 2012, which was confirmed by the Division Bench in W.A.No.16/2021 disposed of on 05.04.2021.

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The Apex Court in the case of Nekkanti Rama

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Lakshmi, while interpreting Section 5 of the Karnataka

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1 (2020) 14 SCC 232

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2 (2019) 1 Kant LJ 819 SC

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NC: 2023:KHC:19041 WP No. 146 of 2017

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Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (for short "PTCL Act") had an occasion to examine the point of limitation wherein interested person can file appropriate application seeking annulment of sale as void under Section 4 of the PTCL Act. The Apex Court by reiterating the principles laid down in Chhedi Lal Yadav .vs. Hari Kishore Yadav³ and also in the case of Ningappa .vs. Deputy Commissioner and others⁴ has held that where Statute did not prescribe the period of limitation, the provisions of the Statute must be invoked within a reasonable time.

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The Apex Court was of the view that the authorities have to give due regard to the period of time within which action has to be taken by the interested person. The Apex Court was of the view that it is well within the discretion of the competent authorities not to annul the alienations where there is inordinate delay in initiating action by the interested persons under Sections 4 and 5 of the PTCL Act.

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3 (2018) 12 SCC 527

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4 (2020) 14 SCC 236

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The co-ordinate Bench of this Court in W.P.No.50446/2012 disposed of on 24.1.2020 declined to entertain the application filed by the original grantee where there was a delay of ten years. This Court was of the view that the application itself was not maintainable since the same was not filed within a reasonable time. While recording the finding, this Court relied on the judgment of the Apex Court in Ningappa .vs. Deputy Commissioner and others, where the Apex Court had declined to entertain the application which was submitted after nine years seeking restoration of land under Sections 4 and 5 of the PTCL Act. The judgment rendered by a co-ordinate Bench of this Court in W.P.No.50446/2012 is affirmed by the Division Bench of this Court in W.A.No.16/2021.

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In the instance case, the authorities granted the

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petition land in favour of one Pedda Bheemaiah on payment of an upset price of `15.23 paise vide order dated 08.06.1967. The original grantee sold the petition land in favour of one Obalesh under registered sale deed

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dated 15.01.1971, who in turn sold it to the present petitioner herein, namely, K.Parvathamma on 14.07.2010. The legal heirs of the original grantee initiated proceedings seeking restoration by filing the petition under Section 5 of the PTCL Act, 1978 on 07.01.1993. Respondent No.3/Assistant Commissioner on enquiry held that the petition land does not fall within the definition of granted land as it was sold for an upset price and therefore rejected the petition on 22.07.1994 by holding that the legal heirs of the original grantee are not entitled to seek restoration. The legal heirs of the original grantee kept quiet for almost 21 years. In the interregnum the first purchaser, that is, husband of respondent No.6, namely, Obalesh, sold the petition land in favour of the petitioner herein on 14.07.2010.

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In the present case on hand, there is a delay of 21 years in initiating action. The respondent No.2/Deputy Commissioner has not examined the delay and laches in moving the application. The judgments cited supra clearly

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indicate that on the ground of gross delay and laches, the application made by the grantee or by the legal heirs under Section 5 of the PTCL Act requires to be rejected. The Hon'ble Apex Court in the above cited judgment has held that where statute does not provide for limitation, the authorities and State must act consciously and if the process of invoking the provisions of statute is delayed and is initiated after long lapse of time, the delay by itself would act as an impediment. Thus, without exception and coming across various rules of law, the Apex Court has categorically stated the law in respect of exercise of power/jurisdiction under statute where no limitation is stipulated. The law on the point of delay and laches to invoke the provisions of PTCL Act is well settled by catena of judgments.

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In the instant case, diligence is woefully lacking. There is a gross delay of 21 years in initiating action. Therefore, the respondent No.2/Deputy Commissioner was not justified in entertaining the

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application. The respondents No.4 and 5 are not entitled for restoration of the petition land as the material on record also indicates that third party rights are created. The petitioner herein is the second purchaser.

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The principles laid down by the Apex Court in

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Chhedi Lal Yadav .vs. Hari Kishore Yadav⁵ [(2018) 12 SCC 527] is also squarely applicable to the present case on hand as the property has changed hands. The Apex Court was of the view that if there is inordinate, unexplained and unjustified delay on the part of the applicant in seeking restoration of the land, such inaction would create a right in favour of other party. Therefore, the Apex Court was of the view that time must be reckoned reasonably, not only in order to preserve the rights and advantages which party possesses but equally to protect each party from losses he ought not to suffer. The registered sale deeds are public documents and after verifying the public documents, if citizens enter into

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5 (2018) 12 SCC 527

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further transaction believing such public documents to be genuine, the subsequent alienations cannot be set at naught by showing leniency to aggrieved party who has slept over his rights, if rights are crystallized on account of inaction on the part of the original grantee. The said application has to be rejected on this count also.

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On examining the material on record, the petition filed by respondents No.4 and 5, who claim to be the legal heirs of the original grantee, is liable to be rejected on three grounds. Firstly, the first sale is of the year 1971, while restoration is sought in 1993 . Therefore, there is delay of 21 years. In the light of principles laid

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down by the Hon'ble Apex Court in the judgement cited supra, the authority has no jurisdiction to entertain the restoration petition if there is a gross delay.

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Secondly, the proceedings initiated by

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respondent No.3/Assistant Commissioner in an earlier round of litigation would also disentitle respondents No.4

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and 5 from seeking restoration of the granted land. On perusal of Annexure-B, this Court would find that a similar application was filed seeking restoration in 1993-94. The respondent No.3/Assisant commissioner rejected the petition vide order dated 22.07.1994. While rejecting the petition in the earlier round, the Assistant Commissioner found that the prohibition against alienation was for a period of ten years. Admittedly, the grant is dated 07.07.1958. If the order passed in the earlier round of litigation is looked into, then I am of the view that the principles laid down by the Hon'ble Apex Court in the case

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of JAGADISH .vs. STATE OF KARNATAKA AND

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OTHERS⁶ are clearly applicable to the present case on hand. The Hon'ble Apex Court held that alienations of granted land made after the expiration of the prohibition period and before the commencement of the PTCL Act, 1978 do not come within the purview of the PTCL Act, and the alienations are saved.

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6 (2021) 2 SCC 812

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Respondents No.4 and 5 preferred an appeal

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before respondent No.2/Deputy Commissioner after lapse of 21 years. There is absolutely no whisper in entertaining a belated appeal in the order passed by respondent No.2/Deputy Commissioner.

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The Hon’ble Apex Court in the case of Balwant Singh vs. Jagdish Singh⁷ has held that liberal approach, justice oriented approach cannot be employed to jettison the substantial law of limitation. The Hon’ble Apex Court in the above cited judgment has clearly held that law of limitation being a substantive law has definite consequences on the right and obligation of a party to the litigation. Once a valuable right has accrued in favour of one party as a result of absolute laxness on the part of the other party and if delay is found to be directly a result of negligence, the said inordinate delay cannot be condoned. The Hon’ble Apex Court has held that discretion vested with the Court while considering delay application under

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7 AIR 2010 SC 3043:(2010) 8 SCC 685

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section 5 of the Limitation Act has to be exercised in a systematic manner informed by reasons".

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In the light of principles discussed supra, respondent No.2/Deputy Commissioner erred in entertaining the appeal, which was filed after 21 years of rejection order passed by respondent No.3/Assistant Commissioner. Therefore, the order passed by respondent No.2/Deputy Commissioner suffers from serious infirmities and is also runs contrary to the principles laid down by the Hon'ble Apex Court in the case of Nekkanti Rama

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Lakshmi.

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Thirdly, the restoration petition cannot be entertained in the light of judgment rendered by the Hon'ble Apex Court in Chhedi Lal Yadav , which is cited supra. The first sale was in 1971, and the proceedings initiated by respondents No.4 and 5 was rejected by respondent No.3/Assistant Commissioner in 1994. Therefore, petitioner, who is a bonafide purchaser, has

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verified the title documents and in all probability, also examined the outcome of the proceedings initiated by respondents No.4 and 5. As on the date of purchase by petitioner herein, which is in the year 2010, the legal heirs of the original grantee have also suffered an order at the hands of respondent No.3/Assistant Commissioner. Therefore, the petitioner being a bona fide purchaser, her rights are bound to be protected as she has purchased after verifying the public documents. This aspect is also not dealt by respondent No.2/Deputy Commissioner. Therefore, the order passed by respondent No.2/Deputy Commissioner suffers from serious infirmities and the restoration allowed by respondent No.3/Assistant Commissioner is contrary to the principles laid down by the Hon'ble Apex Court in the judgment cites supra.

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