Bhangarya Bista Naik Dasan And Ors vs Deputy Commissioner And Ors

The 1s t respondent in W .P.No.24411/2005 (SC/ST), on the file of learned single Judge of this Court, has come up in this appeal impugning the order dated 15.12.2014, passed therein.

The brief facts leading to this intra-Court appeal are that, the aforesaid writ petition was filed by 3r d respondent herein, challenging the order of Assistant Commissioner, Sirsi Sub- Division, Sirsi, in proceedings No.PTCL-Viva- 1/04- 05, which was filed by the 3rd respondent herein under section 4 and 5 of Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) A ct, 1978 ( PTCL A ct, for short), in seeking restoration of land to an extent of 8 acres 19 guntas, in Sy.No.232 of Kanthraji village of Sirsi taluk, from the appellant herein namely Bhangarya Bista Naik (Dasan).

Admittedly the aforesaid land was granted in favour of the husband of 3r d respondent herein namely Fakira Chalavadi, on 30.7.1958. Thereafter the said land was in possession, cultivation and enjoyment of Fakira Chalavadi up to 29.7.1972, on which day he sold the aforesaid extent of land in favour of the appellant Bhangarya S/o.Bista Naik (Dasan) under a registered sale deed which is executed subsequent to securing permission from the Assistant Commissioner of Sirsi, on 25.7.1972, i.e., four days prior to execution of sale deed in favour of the appellant herein. Thereafter the said extent of land was mutated in the name of appellant herein vide M.E.No.1320, vide order dated 20.5.1973.

It is seen that the said position continued till the demise of 3r d respondent' s husband Fakira Chalavadi, without there being any resistance to the possession, cultivation and enjoyment of land in question by the appellant herein from the original grantee who had sold the land in favour of the appellant in the year 1972. It is after the death of Fakira Chalavadi who died on 18.12.2002, his widow 3r d respondent herein approached the 2n d respondent Assistant Commissioner of Sirsi Sub- Division, Sirsi, by application dated 22.3.2003 seeking restoration of aforesaid land on the ground that there is violation of grant condition by her husband in conveying the land in question in favour of the appellant herein, which is subsequently held to be invalid pursuant to the enactment of PTCL Act, 1978, coming into force where liberty was reserved to the grantees to seek restoration of lands, which are conveyed in favour of 3r d parties even prior to the said Act coming into force.

Though it is invoking aforesaid provision, the application is filed. In the application there was allegation of fraud being committed by the purchaser of the land against the vendor Fakira Chalavadi, who is original grantee. It is seen that the application which was filed by 3r d respondent herein is registered as proceedings No.PTCL 1/04- 05, wherein after conducting an enquiry the 2n d respondent Assistant Commissioner has come to a conclusion that the sale transaction between the original grantee and appellant herein is subsequent to securing necessary permission from the 2n d respondent, which was granted in favour of the vendor on 25.7.1972 as required under Rule 9 of Karnataka Land Grant Rules and accordingly the application which was filed by the 3r d respondent was rejected by order dated 3.11.2004.

It is seen that against the order of 2n d respondent A ssistant Commissioner in PTCL 1/04- 05, the 3r d respondent approached the 1s t respondent Deputy Commissioner, in A ppeal No.3/2004- 05, which came to be dismissed by order dated 19.9.2005, which was subject matter of challenge before the learned single Judge of this Court in W.P.No.24411/2005.

In the said proceedings, the learned single Judge by interpreting the provisions of Rule 40 of Mysore Land Grant Rules, 1968 and also the standing orders, which are issued with reference to the land grant, proceeded to set aside the order of the Deputy Commissioner and as well as the Assistant Commissioner and consequently directed restoration of the land, which was sold in favour of appellant herein, which is sought to be challenged by the 1s t respondent before the learned single Judge in this intra-Court appeal.

It is seen that by the time this appeal came up for consideration before this Court, the right of original grantee seeking restoration of land sold in contravention of the provisions of PTCL Act was provided quietus by the Apex Court in the matter of Chhedi L al Y ad av and o ther s vs. Har i Kishor e Y ad av ( D) T hr. LR s. and o ther s, r epor ted in LAWS (SC) 2017-4-146, which is followed by another judgment rendered by very same Bench in Civ il Appeal No.1390/2009, in the matter of Nekkan ti R ama L akshmi vs. State of Kar nataka and ano ther .

It is seen, in the 2n d judgment in the matter of Nekkanti R am a L akshmi, the A pex Court while discussing the rights of the parties held as under:

............It is held that ac tion whether on an appl ic ation of the p ar ties, or suo mo tu, must be taken within a reasonable time. That ac tion ar ose under the pr ovisions of a simil ar Act which prov ided f or restor ation of cer tain lands to f ar mer s which wer e sold f or arrear s of rent or f rom which they wer e ejec ted f or ar r ear s of land f rom 1s t Januar y, 1939 to 31s t December , 1950. This r elief was gr anted to the f ar mer s due to f lood in the Kosi R iver which make agr icul tur al oper ations impossible. An appl ic ation f or restor ation was made af ter 24 year s and was allo wed. It is in that backgr ound that this Cour t upheld that it was unreasonable to do so. We have no hesitation in uphold ing that the presen t appl ic ation f or restor ation of land made by respondent-R ajapp a was made af ter an unreasonably long per iod and was liable to be dismissed on that ground.

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While coming to such opinion, the Apex Court expressly overruled the law as it was prevailing with reference to restoration as decided in the matter of ( i) R.Rudrappa vs. Deputy Commissioner, reported in 2000( 1) KLJ 523 (ii) Maddurappa vs. State of Karnataka, reported in 2006( 4) KLJ 303 (iii) G.M aregouda vs. The Deputy Commissioner, Chitradurga district, Chitradurga and others, reported in 2000( 2) KLJ S.N.4B. While overruling the said judgments, it is expressed by the Apex Court that there is no limitation provided by section 5 of the PTCL Act and therefore application can be made at any time for restoration, is overruled.

Therefore, by applying the same analogy this Court would hold that the finding of the 1s t and 2n d respondents i.e., Deputy Commissioner and Assistant Commissioner, respectively, in rejecting the application of 3r d respondent seeking restoration is just and proper. While making such observation, this Court would further hold that the judgment rendered by the learned single Judge of this Court in W .P.No.24411/2005 (SC/ST) is also required to be set aside. While doing so, this Court would further observe that in the instant case when the 3r d respondent who is the wife of original grantee has sought restoration of land only after the death of her husband, which has taken place in the year 2002. In fact, earlier when the husband of 3rd respondent, who had sold the property in question to the appellant herein after securing permission from the 2n d respondent A ssistant Commissioner was alive, he never made any attempt to seek restoration of that land to him.

It is also seen that it is after his death, for the first time the wife tried to seek restoration not only under the provisions of PTCL Act, 1978 but also on the ground that there was fraud committed by the appellant herein in securing the sale deed from her husband which she was not able to sustain in the proceedings before the Assistant Commissioner and as well as the Deputy Commissioner. Though the same was not pursued before the learned single Judge, the learned single Judge has proceeded in a different tangent with reference to the provisions of Land Grant Rules and its application to the fact on hand instead of considering the prayer on its merits.

In that view of the matter, this Court find no justifiable grounds are made to sustain the order of the learned single Judge in W.P.No.24411/2005 which was passed in reversing the order of A ssistant Commissioner in dismissing the application of 3r d respondent for restoration, which is rightly confirmed by the 1s t respondent Deputy Commissioner in an appeal filed before him.

With such observation, this appeal is allowed by setting aside the order passed by the learned single Judge, consequently, confirming the order of 2n d and 1s t respondents, in rejecting the prayer of 3r d respondent seeking restoration of land purchased by the appellant.