P. Kamala vs State Of Karnataka

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.

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.

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.

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 ILR 2004 KAR

3298 could not have remitted the matter for reconsideration.

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 Ors. Vs. M.Ashwatha and Ors 2017 SCC OnLine SC 1858 . and Nekkanti Rama

Lakshmi Vs. State of Karnataka and Anr 2017 (1) Kar.L.R. 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.Hinduja2 and

Nekkanti Rama Lakshmi 2017 (1) Kar.L.R. 5 (SC),3, seeking resumption and restoration, have been rejected on the ground of enormous delay. While

drawing the attention of this Court to two decisions of co-ordinate Benches, in the case of Sri. Narayanappa and Anr. Vs. the Deputy Commissioner

& Ors., in W.A.No.6698-6699/2017, decided on 09.08.2018 and Sri. Nagaraju Vs. M.Vijayakrishna & Ors., in W.A.No.908/2019 and connected

matters, decided on 12.06.2019, the learned Counsel submits that in view of the decisions of the Apex Court in Vivek M.Hinduja2 and Nekkanti Rama

Lakshmi 2017 (1) Kar.L.R. 5 (SC), the writ petition preferred by the purchasers had to be allowed and there was no need to remit the matter back to

the Assistant Commissioner.

Per contra, Smt.M.V.Susheela, learned Senior Counsel, appearing for the grantee, submits that the question of limitation in filing an application

seeking resumption and restoration of granted land, under the Act, does not arise. It is submitted that a co-ordinate Bench of this Court, in the case of

G.M.Venkatareddy & Anr. Vs. The Deputy Commissioner, Kolar ILR 2012 (2) KAR 3168had an occasion to deal with a similar situation, where the

Hon’ble Supreme Court, in the case of Ningappa Vs. Deputy Commissioner, in Civil Appeal No.3131 of 2007 decided on 14.07.2011, had

observed that if considerable delay occurs, action under the Act cannot be taken. Heavy reliance had been placed on the order of the Hon’ble

Supreme Court in the case of Ningappa (supra) and prayers were made in the pending writ petitions before this Court, to dispose of the matters on the

basis of the order in Ningappa (supra).

His Lordship Justice Vikramajit Sen, as he then was the Chief Justice of this Court, writing the judgment for the Division Bench, observed that

when a condition of non-alienation is stipulated in the grant, title of land in question has not been absolutely granted to the grantee. Their title by

adverse possession against the State was for a period of over 30 years prior to the date of coming into force of the Act. It was therefore held that

transfer made in contravention to the conditions would necessarily mean that the grantee cannot give a better title than what he had, to the purchaser

and that title has the burden of non-alienation either for a particular period or for all period to come. If any sale is effected contrary to those provisions,

the same would enable the authorities to resume the lands in question. Having regard to Section 5(3) of the Act, it was held that a legal fiction is

enacted in sub-section (3) of Section 5 to state that if a person is found to be in possession of the granted land, then, said person should be regarded as

a person who has acquired the granted land by transfer. A presumption lies, unless the contrary is proved, that such person has acquired the land by a

transfer which is null and void. Having discussed the provisions of the Act and various decisions of the Apex Court, it was held that dismissal of an

application or writ petition on the ground of laches is irreconcilable with the elaboration and enunciation of the law of adverse possession made

previously by larger Benches. Further more, it was submitted that the decision in G.M.Venkatareddy 4 was sought to be assailed before the

Hon’ble Supreme Court in SLA (C)Nos.17985/2012 and 23874/2012. By order dated 16.07.2012, the Hon’ble Supreme Court declined to

interfere and dismissed the Special Leave Appeals, holding as under:

“……carefully perused the well crafted and well reasoned judgment of the Division Bench of the High Court and are convinced that the learned

Single Judge and the Division Bench did not commit any error by refusing to entertain the petitioner’s challenge to the orders passed by the

competent authority and the appellate authority respectively.

The Special Leave Petition is accordingly dismissed.â€​

Similarly SLA (C) No.23874/2012 was also dismissed.

The learned Senior Counsel submits that the learned Single Judge erred in placing reliance on the decision of a Division Bench of this Court in the

case of Mariyappa /vs./N.Thimmarayappa ILR 2004 KAR 3298, on the question of adverse possession, since the question of adverse possession in

relation to the provisions of the Act stood emphatically decided by the Hon’ble Supreme Court in the case of D.N.Venkatarayappa And Another

/vs./ State of Karnataka And Others (1997) 7 SCC 567, wherein it was held that the purchaser is required to plead and prove that he/she disclaimed

the title under which he/she came into possession, set up adverse possession with necessary animus of asserting open and hostile title to the

knowledge of the true owner and the latter allowed the farmer, without any let or hindrance, to remain in possession and enjoyment of the property,

adverse to the interest of the true owner until the expiry of the prescribed period. The classical requirement of adverse possession is that it should be

nec vi, nec clam, nec precario. Further more, having regard to the decisions of the larger bench of the Hon’ble Supreme Court in the case of

Manchegowda And Others /vs./ State of Karnataka And Others (1984) 3 SCC 30,1 Their Lordships in R.Chandevarappa And Others /vs./ State of

Karnataka (1995) 6 SCC 309held that in the context of the Act, while considering the claim of adverse possession of the purchaser of a granted land

from the original grantee, the person who comes into possession under colour of title from original grantee, if he intends to claim adverse possession as

against the State, such a person must disclaim his title of the State and the State had not taken any action thereon within the prescribed period. It is

therefore submitted that the learned Single Judge could not have remitted the matter back to the Deputy Commissioner for reconsideration on the

question of adverse possession.

The learned Senior Counsel further submits that the writ petition was erroneously allowed by the learned Single Judge on 21.01.2015. The petition

was not allowed on the ground of delay and laches. In fact, such a contention was not put forth before the learned Single Judge. It is submitted that

had the said question of delay and laches been put forth before the learned Single Judge, in view of the unequivocal opinion as on the date of the

decision in the writ petition, such a plea would have been negatived. The learned Senior Counsel submits that as a routine, the ground of delay and

laches were taken by the purchasers in all the petitions and the same have been negatived by this Court and by the Hon’ble Supreme Court, until

the decision of the Apex Court in the case of Nekkanti Rama Lakshmi 2017 (1) KAR.L.R. 5 (SC).

The learned Senior counsel further submits that the purchasers should not be allowed to take advantage of the recent decisions in Nekkanti 2017

(1) KAR. L.R. 5 (SC)andVivek Hinduja 2017 SCC OnLine SC 1858, since the question of delay and laches were never raised or argued before the

fact finding authorities or the learned Single Judge. Indeed, the grantee is taken by surprise that the question of delay and laches is raised for the first

time before this Court, that too because of the latest decision in the case of Nekkanti 2017 (1) KAR. L.R. 5 (SC)and Vivek Hinduja 2017 SCC

OnLine SC 1858. Even otherwise, it is submitted that the decisions of the Apex Court in the case of Nekkanti 2017 (1) KAR. L.R. 5 (SC)and Vivek

Hinduja 2017 SCC OnLine SC 1858 should not be taken or read in the manner that without affording an opportunity to the grantee to explain the delay,

if any, the decisions could be made applicable and the grantee who has succeeded before the fact finding authorities should be shown the door. It is

therefore submitted that the minimum that is required is to afford an opportunity under the principles of natural justice, to the grantee to explain the

delay, if any.

We have heard Sri Prakash T.Hebbar, learned counsel for the purchasers and Smt. M.V.Susheela, learned Senior Counsel for the grantee. We

have perused the writ papers and have given anxious consideration to the submissions made by the learned counsels.

The learned Single Judge was of the opinion that when the stipulation in the grant certificate restricted alienation for a period of 10 years, the

Assistant Commissioner could not have relied upon the Rules to hold that a restriction covenant of ‘non-alienation forever’ could not be read

into the grant certificate. The matter was remitted back to the Deputy Commissioner to consider the question of adverse possession raised by the

purchasers. As rightly pointed out by the learned Senior Counsel, the question of adverse possession in the context of PTCL Act has been

authoritatively answered by the Hon’ble Supreme Court in various cases, including D.N.Venkatarayappa (1997) 7 SCC 567and R.Chandevarappa

(1995) 6 SCC 309. Therefore, remittance for reconsideration on that ground was not warranted. On the other contention of whether ten years of non-

alienation is applicable or non-alienation ‘forever’ is applicable to a grant made under ‘Grow More Food Scheme’ or any other grant for

that matter has also been authoritatively settled by the Hon’ble Supreme Court in the case of Guntaiah And Others /vs./ Hambamma and Others

(2005) 6 SCC 228.

Guntaiah8, explicitly holds that the purchaser has no locus standi to challenge any of the terms of a grant and intendment of the Act did not infringe

Article 19(1)(f) of the Constitution. It was held that the prohibition regarding alienation is a restrictive covenant binding on the grantee. The grantee is

not challenging that condition. In all these proceedings, challenge is made by the third party who purchased the land from the grantee. The third party

is not entitled to say that the conditions imposed by the grantor to the grantee were void. As far as contract of sale is concerned, it was entered into

between the Government and the grantee and at that time the third party purchaser has no interest in such transaction. In the case of Maj.

Gen.J.K.Koshy and The Assistant Commissioner, Bangalore in W.A. No.16558/2011 disposed of on 11.07.2012, it has been held that if the period of

non-alienation imposed in the grant is contrary to the Rules, the Rules shall prevail. In fact that was the position of law declared in Siddalingaiah vs.

State of Karnataka ILR 1989 KAR 2311, which was followed in many other matters. Therefore, no fault could be found in the decision of the fact

finding authority that the period of non-alienation provided under the prevailing Rules should be made applicable.

We shall now consider the submissions regarding the application of the decision of the Apex Court in the case of Nekkanti 2017 (1) KAR. L.R. 5

(SC)and Vivek Hinduja 2017 SCC OnLine SC 1858, to the present case. In this regard, a few facts which are germane, are required to be looked into.

We have perused the grounds urged in the writ petition. It is found at paragraph No.12 in the grounds raised by the purchasers, in W.P.No.38561-

38564/2009, it is stated 2017 (1) KAR. L.R. 5 (SC) that the application made by the grantee, seeking resumption and restoration of the granted land

after a period of 30 years, was barred by law of limitation and the application ought to have been dismissed for delay and laches. But, such a ground is

not taken in the appeal, before this Court. The learned counsel for the purchasers, fairly conceded that he is not aware as to whether the plea of delay

and laches were raised before the Assistant Commissioner. It is evident from the orders passed by the Assistant Commissioner that the question of

delay and laches was neither raised nor considered.

The decision in G.M.Venkatareddy ILR 2012 (2) KAR 3168 has been pressed into service with all vehemence. As noted above, the decision of

the co-ordinate bench in G.M.Venkatareddy ILR 2012 (2) KAR 3168 ILR 2012 (2) KAR 3168 has been upheld by the Hon’ble Supreme Court

on more than one occasion. However, we find that the SLP’s seeking to assail the decision in G.M.Venkatareddy ILR 2012 (2) KAR 3168 ILR

2012 (2) KAR 3168 have been dismissed at the threshold. While the Hon’ble Supreme Court has specifically overruled the decisions of this Court

in the case of R.Rudrappa /vs./ The Deputy Commissioner & Others 2000 (1) KLJ 523; Maddurappa /vs./ State of Karnataka2006 (4) KLJ 303 and

G.Maregouda /vs./ Deputy Commissioner 2000 (2) KLJ Sh. N.4B, Chitradurga District, which had held that there is no limitation provided by Section

5 of the PTCL Act and therefore an application can be made at any time, stands overruled.

In Vivek Hinduja 2017 SCC OnLine SC 1858, the Hon’ble Supreme Court has also negatived the submission that the outer limit for initiating

action should be 30 years, in view of the law declared in Manchegowda (1984) 3 SCC 301 and Sunkara Rajayalakshmi and others /vs./ State of

Karnataka(2009) 12 SCC 193.

It was held that reliance placed on the observations in Manchegowda (1984) 3 SCC 301 and Sunkara Rajayalakshmi (2009) 12 SCC 193are not

apposite and are made with reference to period of prescription in respect of Government properties under the Limitation Act, 1963. Therefore, unless

and until the decisions in Nekkanti 2017 (1) KAR. L.R. 5 (SC)and Vivek Hinduja 2017 SCC OnLine SC 1858 are reconsidered, either in the light of

the decision of the co-ordinate bench in G.M.Venkatareddy ILR 2012 (2) KAR 3168 ILR 2012 (2) KAR 3168, or for any other reason, this Court is

bound by the decision of the Hon’ble Apex Court, in the case of Nekkanti 2017 (1) KAR. L.R. 5 (SC)and Vivek Hinduja 2017 SCC OnLine SC

1858.

However, we find sufficient force in the argument of the learned Senior Counsel that in a subsequent judgment, in the case of Satyan /vs./ Deputy

Commissioner and others Civil Appeal Nos.2976-2983/2019decided on 30.04.2019, the Hon’ble Supreme Court has held that a delay of eight

years by itself cannot come in the way of competent authority taking the action, as limitation principles would not apply, as observed in Amrendra

Pratap Singh /vs./ Tej Bahadur Prajapati and others AIR 2004 SC 3782 with reference to the decisions in Nekkanti 2017 (1) KAR. L.R. 5 (SC)and

Vivek Hinduja 2017 SCC OnLine SC 1858, Their Lordships held that those cases involved huge gaps of around 20 to 30 years, and in that context,

held that delay of 8 years could not be held to term the action as void, considering that it is in respect of a beneficial legislation for the Scheduled

Castes and Scheduled Tribes community. Though there is considerable force in the submission of the learned Senior Counsel that since absolute title

has not vested in the grantee and there is violation of condition, the State may take steps within a period of 30 years to recover the land, failing which

any interested person may move an application and seek resumption in favour of the State in order to enable the State to regrant the land in favour of

any other SC/ST person, within a reasonable period, we feel such submissions may be made before the Hon’ble Supreme Court.

The learned Senior Counsel has drawn the attention of this Court to the observations of the Hon’ble Supreme Court in the case of Amrendra

Pratap Singh AIR 2004 SC 3782 where it was held that the prescription of the period of 12 years in Article 65 of the Limitation Act becomes

irrelevant sofar as the immoveable property of a tribal is concerned. The Tribal need not file a civil suit which will be governed by law of limitation; it

is enough if he or any one on his behalf moves the State or the State itself moves into action to protect him and restores his property to him. To such

an action neither Article 65 nor Section 27 of the Limitation Act thereof would be attracted. It was categorically held that acquisition of title in favour

of a non tribal by invoking the doctrine of adverse possession over the immoveable property belonging to a tribal, is prohibited by law and cannot be

countenanced by the Court. Though the provisions of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation,

1956, which fell for consideration in Amrendra Pratap Singh AIR 2004 SC 3782are akin to the provisions of the PTCL Act, we have to bear in mind

that the decisions in Nekkanti 2017 (1) KAR. L.R. 5 (SC)and Vivek Hinduja 2017 SCC OnLine SC 1858and Satyan Civil Appeal Nos.2976-2983/2019

have dealt with the provisions of the PTCL Act. It is by now well settled that a judicial decision is an authority for what it actually decides and not for

what can be read into it by implication or by assessing an assumed intention to the judges, and inferring from it a proposition of law which the judges

have not specifically laid down in the pronouncement.

Similarly, the decision of a larger bench of the Hon’ble Supreme Court in the case of Rajasthan Housing Board /vs./ New Pink City Nirman

Sahakari Samiti Limited AIR 2015 SC 2126, which was relied upon by the learned Senior Counsel does not deal with the question as to whether an

application made by a grantee seeking resumption and restoration of granted land requires to be made within a reasonable period.

A Constitutional Bench of the Hon’ble Supreme Court, in the case of Ittyavira Mathai /vs./ Varkey Varkey and another AIR 1964 SC 907

held that where a barred suit was entertained and a decree is passed, the said decree cannot be treated as a nullity and ignored in subsequent

litigation. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open

to challenge on the basis of being a nullity. That being the position with respect to a suit where limitation is prescribed, we are of the considered

opinion that a purchaser, who is a respondent before the Assistant Commissioner should have raised a plea that the application should be rejected on

account of delay and laches. The decision on merits by the Assistant Commissioner cannot be dismissed as a nullity.

Similarly, in a situation where a plea of limitation was not raised at the earliest instance, an application seeking to raise the question of limitation

was permitted to be made even at the appellate stage or before the Apex Court in a Special Leave Application. Reference may be made to larger

bench decisions in the case of Management of the State Bank of Hyderabad /vs./ Vasudev Anant Bhide AIR 1970 SC 19,6 and Town Municipal

Council, Athani /vs./ Presiding Officer, Labour Courts, Hubli And Others AIR 1969 SC 133.5 In that context, in the case of Town Municipal Council,

Athani AIR 1969 SC 1335, notice of such application, seeking to raise the plea of limitation, was served on the respondent well in time, so that, by the

time the appeals came up for hearing they knew this point was sought to be raised by the appellant. Their Lordships held that a question of limitation

raises a plea of want of jurisdiction and, in these cases, this question could be decided on the basis of the fact on the record, being a pure question of

law.

While considering the words “sufficient causeâ€, as provided in Order XXII Rule 9(2) (3) of the Code of Civil Procedure, the Hon’ble

Supreme Court, in the case of Balwant Singh /vs./ Jagdish Singh and others(2010) 8 SCC 685, held that liberal construction of the expression

“sufficient cause†is intended to advance substantial justice which itself pre supposes no negligence or inaction on the part of the applicant, to

whom want of bonafide is imputed. The expression “sufficient cause†implies the presence of legal and adequate reasons. The “sufficient

cause†should be such that it persuades the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. It would be apposite to

notice the observations of the Hon’ble Supreme Court in the case of Thirumalai Chemicals Limited /vs./ Union of India and others(2011) 6 SCC

739, wherein, on the question of law of limitation, it was held that law of limitation is capable of effectively depriving persons of accrued rights and

therefore, they need to be approached with caution.

Time and again, the Hon’ble Supreme Court has held 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 on the facts and

circumstances of each case and the statutory provisions governing a particular case. To give an illustration, if a person is granted land in the year 1975

and in violation of the terms of grant, alienates the land in the year 1980 and dies immediately thereafter, leaving behind a minor son as his sole legal

heir and the son makes an application under Section 5 of the Act, in the year 2000, a few years after attaining majority, the question that begs

consideration is whether delay of 20 years in filing the application could be rejected on the ground of unreasonable delay or without sufficient cause?

Obviously, the answer would be that sufficient cause is shown. There are any number of precedents where delay of more than 20 years have been

condoned in matters relating to payment of compensation under Land Acquisition Act and the like.

As noted earlier, there is nothing on record to suggest whether the purchaser raised an objection or plea regarding delay and laches, before the

Assistant Commissioner. On the face of the record, it is evident that the grantee was not called upon to explain the delay. The least that is expected,

on the principles of audi alteram partem is that an opportunity should be given to the grantee to explain the delay. The grantee, if afforded such an

opportunity, may file an affidavit along with cogent evidence and such an explanation may be examined, which would satisfy the basic tenets of law.

In the light of the above, we are of the opinion that the matter needs to be remanded to the learned Single Judge, for the purpose of affording an

opportunity to the applicant (Sri Krishnappa) to file an affidavit explaining the reasons for delay, along with documentary evidence, if necessary. It is

for the learned Single Judge to decide, based on the explanation offered and material placed on record, as to whether the application was within

reasonable time and if not, whether “sufficient causeâ€​ is shown to condone the delay.

We therefore proceed to pass the following:

:ORDER:

(i) The impugned order passed by the learned Single Judge is quashed and set aside.

 (ii) The matter is remitted back to the learned Single Judge for the purpose of deciding the question of delay.