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2019 Supreme(Kar) 888
IN THE HIGH COURT OF KARNATAKA
L. NARAYANA SWAMY, R. DEVDAS, JJ.
P. Kamala, D/o Late K. Puttiah - Appellant
Versus
State Of Karnataka Revenue Department — Respondent
Writ Appeal No. 503, 588, 589, 596, 597, 128 of 2016, 774, 775 of 2015
Decided on : 08-07-2019
Advocate Appeared:
Prakash T. Hebbar, Adv., V. Sreenidhi, Adv., M.V. Susheela, Adv., K.S. Narayanaswamy, Adv., K.S. Narayana Swamy, Adv.
Headnote:
Constitution Of India,1950 - Article 19(1)(f) - Civil Procedure Code,1908 - Order XXII - Rule 9(2) (3) - Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 - Section 5 - Limitation Act - Section 27 - Claim of adverse possession - quash - Anjanappa sold granted land to one first sale and all further transfers were hit by provisions of Assistant Commissioner allowed application by order directed resumption and restoration of land in favour of applicant- When matter was taken up in appeal Section before Deputy Commissioner appeal was dismissed- Consequently writ petitions came to be filed and by order Single Judge set aside orders passed by Assistant Commissioner and Deputy Commissioner and remitted matter back to Deputy Commissioner to reconsider matter on certain facts and on question of adverse possession –Held, Case that liberal construction of expression "sufficient cause" is intended to advance substantial justice which itself pre supposes no negligence or inaction on part of applicant to whom want of bonafide is imputed expression "sufficient cause" implies presence of legal and adequate reasons "sufficient cause" should be such that it persuades Court in exercise of its judicial discretion to treat delay as an excusable one- It would be apposite to notice observations of Honble Supreme Court in case of Thirumalai Chemicals Limited - Union of India and others wherein on question of law of limitation it was that law of limitation is capable of effectively depriving persons of accrued rights and therefore they need be approached with caution Court has that there cannot be straight jacket formula to decide as to what is a reasonable period for filing an application or a writ petition where there is no prescription of limitation- What is reasonable depends and circumstances of each case and statutory provisions governing a particular case- To give an illustration if a person is granted land and violation of terms of grant alienates land in and dies immediately thereafter leaving behind a minor son as his sole legal heir and son makes an application Assistant Commissioner- On face of record it is evident that grantee was not called upon to explain delay least that is expected on principles that an opportunity should be given to grantee to explain delay grantee if afforded such an opportunity may file an affidavit along with cogent evidence and such an explanation may be examined which would satisfy basic tenets of law court are of opinion that matter needs to be remanded to Single Judge for purpose of affording an opportunity to applicant file an affidavit explaining reasons for delay along with documentary evidence if necessary- It is for Single Judge to decide based on explanation offered and material placed on record as to whether application was within reasonable time and if not whether "sufficient cause" is shown condone delay – Order accordingly
JUDGMENT :
R. Devdas, J.
The writ petitioners and the private respondents in W.P.No.38563-64/2009 are before this Court calling in question the order dated 21.01.2015 passed by the learned Single Judge. Therefore the appeals are heard together and disposed of by this common order.
2. Section 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) provides that an application may be made by any interested party or on information given in writing by any person or suo motu the Assistant Commissioner, if satisfied that the transfer of any granted land is null and void under Sub-Section (1) of Section 4, he may cause notice to the person affected, give reasonable opportunity of being heard and, by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed. One such application was made by Sri Krishnappa, the appellant in W.A.No.774/2015, contending that his grandfather Sri Anjanappa was granted 2 acres of land in Old Sy.No.31/10, New Sy.No.84 of Sriramanahalli, Hesarghatta Hobli, Bangalore North Taluk, initially under the Grow More Food scheme and after confirmation, the grant certificate was issued to Anjanappa on 03.09.1949, with a condition of non-alienation for a period of ten years. It was further contended that though the condition stipulated in the grant certificate restricts alienation for a period of ten years, as per the prevailing Rules i.e., Government Order No.2828 LR 89-38-10 dated 13.12.1938, lands granted in favour of Depressed Class persons shall not be alienated forever.
3. It was contended that since Anjanappa sold the granted land to one Sri H.T.Subba Rao on 29.12.1967, the first sale and all further transfers were hit by the provisions of Section 4(1) of the Act. The Assistant Commissioner allowed the application by order dated 22.02.2008 and directed resumption and restoration of the land in favour of the applicant. When the matter was taken up in appeal, under Section 5A of the Act, before the Deputy Commissioner, the appeal was dismissed. Consequently, the writ petitions came to be filed and by order dated 21.01.2015, the learned Single Judge set aside the orders passed by the Assistant Commissioner and Deputy Commissioner and remitted the matter back to the Deputy Commissioner to reconsider the matter on certain facts and on the question of adverse possession.
4. The grantee (which means the person claiming under the grantee and the original applicant before the Assistant Commissioner) contends, in his writ appeal, that both the fact finding authorities had concurrently held that there is no dispute on facts and the legal position, therefore, the learned Single Judge could not have remitted the matter back for reconsideration. On the other hand, the purchasers (the writ petitioners) contend that the learned Single Judge, having held that the issue regarding stipulation of non-alienation for ten years and the finding of the Assistant Commissioner being contrary to the condition of stipulation and the same having been covered by a decision in the case of Mariyappa Vs. Thimmarayappa, (2004) ILR(Kar) 3298 could not have remitted the matter for reconsideration.
5. Sri Prakash T.Hebbar, learned Counsel appearing for the purchasers draws the attention of this Court to some of the recent decisions of the Hon'ble Supreme Court, in the case of Vivek M.Hinduja and Others. Vs. M.Ashwatha and Ors., 2017 SCCOnLineSC 1858 and Nekkanti Rama Lakshmi Vs. State of Karnataka and Anr, 2017 1 KarLR 5 (SC) to contend that the application filed by the grantee requires to be rejected on the ground of delay and laches. It is contended that the action initiated after a period of 20 years to 25 years, as in the case of Vivek M.Hinduja, 2017 SCCOnline SC 1858 and Nekkanti Rama Lakshmi, 2017 1 KarLR 5 (SC) seeking resumption and restoration, have been rejected on the ground of eno
