1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JUNE, 2018 BEFORE THE HON'BLE MR. JUSTICE G.NARENDAR WRIT PETITION NO.11833/2017 (SC/ST) BETWEEN: 1. SRI. BABU SHANKAR S/O. P V LOKANATHAN AGED ABOUT 49 YEARS R/AT HOUSE NO. 40 KHATHA NO. 289 HULLIMANGALA VILLAGE JIGNI HOBLI ANEKAL TALUK BANGALORE DISTRICT- 562 106. 2. SRI. A. KANNAN S/O. ARIMULAM R/AT SITE NO. 22 PROPERTY NO. 289 HULLIMANGALA VILLAGE JIGANI HOBLI, ANEKAL TALUK BANGALORE URBAN DISTRICT - 562 106. 3. SRI. SANTHOSH KUMAR S/O. C. SUBRAMANI AGED ABOUT 32 YEARS R/AT NO. 795, S. GIRI NIVAS BRUNDAVANA NAGAR 7TH CROSS, NARMADA RIVER ROAD, DOBHI GHAT BANGALORE - 560 019. 2 4. SRI. A C ASHOK KUMAR S/O. LATE. CHAMUNDI AGED ABOUT 47 YEARS R/AT SITE NO. 65 & 66 PROPERTY NO. 289 HULLIMANGALA VILLAGE JIGANI HOBLI, ANEKAL TALUK BANGALORE URBAN DISTRICT - 562 106. 5. K. GOVINDAN S/O. KRISHNA NAIK AGED ABOUT 69 YEARS R/AT HOUSE NO. 38 KHATA NO. 289 HULLIMANGALA VILLAGE, JIGANI HOBLI, ANEKAL TALUK BANGALORE URBAN DISTRICT - 562 106. (SENIOR CITIZENSHIP NOT CLAIMED). 6. RAMAMURTHY S/O. V VARADHARAJ AGED ABOUT 54 YEARS R/AT NO. 191, (A FLOOR) SAREEF LAYOUT SUBHASH NAGAR SINGHSANDRA HOSUR MAIN ROAD BANGALORE. PETITIONERS (BY SRI PANCHAM R.D., ADV.) AND: 1. THE STATE OF KARNATAKA REPRESENTED BY ITS REVENUE SECRETARY VIDHANA SOUDHA BANGALORE - 560 001. 3 2. THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT K.G. ROAD BANGALORE - 560 009. 3. THE ASSISTANT COMMISSIONER BANGALORE SOUTH SUB DIVISION BANGALORE - 560 009. 4. SRI. MOTAPPA S/O. R. MUNIYAPPA R/AT S. BIGIPURA VILLAGE HULLIMANGALA VILLAGE JIGANI HOBLI, ANEKAL TALUK BANGALORE URBAN DISTRICT - 562 106. 5. SRI. SHAFIRKHAN S/O. MOHAMMEDULLA KHAN C/O. MASTHAN KHAN PHODU VILLAGE HULLIMANGALA VILLAGE JIGNI HOBLI, ANEKAL TALUK BANGALORE URBAN DISTRICT - 562 106. RESPONDENTS (BY SMT. SAVITHRAMMA, HCGP FOR R1 TO R3 R4 - SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.30.4.2015, PASSED BY THE R-3 VIDE ANNEX-A. AND DIRECT THE R-2 TO HEAR THE APPEALS [WHICH IS NOT NUMBERED YET] FILED BY THE PETITIONERS AND OTHERS CHALLENGING THE ORDER DTD.30.4.2015, PASSED BY THE R-3 VIDE ANNEX-A AS EXPEDITIOUSLY AS POSSIBLE. AND GRANT AN INTERIM ORDER TO STAY THE ORDER DTD.30.4.2015, PASSED BY THE R-3 VIDE ANNEX-A. 4 THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
Heard the learned counsel for petitioners and the learned High Court Government Pleader.
2. The petition is listed for considering interlocutory application in [CASE NUMBER]. It is submitted by the learned counsel for the petitioners that the petitioners are the purchasers of housing sites formed out of Sy.No.289, Old Sy.No.156 totally measuring 2 acres 2 guntas. That out of the said total extent; the petitioners have purchased small portions of land, put up a construction and are residing therein. It is further submitted that the petitioners have purchased the property from the fifth respondent and that the fourth respondent has preferred an application under [SECTION] of the [ACT] for resumption of the land on the premise that the fourth respondent is the grantee of the land and that the said land was alienated to one Smt.[ENTITY], W/o. Late [ENTITY] and her children during the year 1971-72.
3. It is contended by the learned counsel for the petitioners that the proceedings initiated by the respondent No.4 in [CASE NUMBER] the year 2009-2010 is highly belated and is vitiated by gross delay and the delay of nearly 40 years in invoking the provisions seeking for annulling the transfer and resumption of land is highly belated and contrary to law laid down by the Hon'ble Apex Court and this Court.
4. When the case was called, there is no representation on behalf of respondent No.4. The respondent No.4 though served is unrepresented.
5. Learned High Court Government Pleader would submit that this Court in similar circumstances in [CASE NUMBER] has been pleased to reject the application for resumption of land by holding that the belated application would stand vitiated on account of the unexplained gross delay in asserting the rights and also on the ground of delay on the part of the authorities in invoking the provisions and was pleased to allow the writ petition by quashing the orders of the Original Authority and the Appellate Authority directing resumption of the land in favour of the legal representatives of the original grantee.
6. This Court while allowing the writ petition in [CASE NUMBER] disposed of on 04.06.2018 has held as under:
5. Learned counsel for the petitioner places reliance on the ruling of the Apex Court rendered in the case of [PRECEDENT] wherein the Hon'ble Apex Court was pleased to hold as hereunder:
"8. However, the question that arises is with regard to terms of [SECTION] of the Act which enables any interested person to make an application for having the transfer annulled as void under [SECTION] 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 [PRECEDENT] and also in the case of [PRECEDENT], 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-[ENTITY] 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, [PRECEDENT] [PRECEDENT] and [PRECEDENT] holding that there is no limitation provided by [SECTION] of the Act and, therefore, an application can be made at any time, are overruled. Order accordingly."
6. By the said ruling, the Hon'ble Apex Court has settled the law, in respect of inordinate and gross delay in invoking the statutory provisions or exercising powers vested by the statute. After examining the issue and following its earlier ruling rendered in the case of [PRECEDENT] wherein it has been reiterated that in respect of a statute that does not provide for a period of limitation to exercise the power, then the statutory provisions must be invoked within a reasonable time.
7. Learned HCGP would also place on record the Judgment rendered by this Court in [CASE NUMBER] (SC/ST) [CASE NUMBER] disposed of by order dated 20.2.2018 whereby, a co-ordinate Bench of this Court, placing reliance on the ruling of the Hon'ble Apex Court in [ENTITY]'s case referred supra was pleased to dismiss the writ petitions preferred by the legal heirs of the original grantee.
8. In the instant case, the provisions of [SECTION] are invoked after passage of more than 30 years. And by no stretch of imagination can it be considered as a reasonable period. The law in this regard has been well settled and is squarely applicable to the facts of the case.
9. The contention on behalf of the petitioner merits consideration. The counsel for respondent would submit that the decision reported in the case cited supra cannot be looked into in view of the law laid down by the Apex Court in the case of [ENTITY] vs. State of Karnataka reported in (1984) 3 SCC 301. That in the case of [ENTITY], the law is settled by a Division Bench of three Judges whereas, the cited ruling is rendered by a Division Bench of two Judges. This contention requires to be rejected in the light of the fact that, the Hon'ble Apex Court was not seized with the issue regarding delay in invoking the provisions of the Act while disposing of [ENTITY]'s case. Thus, the Apex Court has not considered the issue with regard to unreasonable delay in invoking the provisions of the statute as the said ruling came to be rendered in a short span after coming into force of the enactment.
10. The Hon'ble Apex Court in [ENTITY]'s case referred supra in fact visualized the present conundrum by holding that any negligence and delay on the part of the authorities, entitled to take action to avoid such transfers through appropriate legal process for resumption of such grant may be further impediments in the matter of avoiding such transfers and resumption of possession of the granted lands. The relevant paragraph is extracted hereunder for quick reference.
"12. In pursuance of this policy, the Legislature is undoubtedly competent to pass an enactment providing that transfers of such granted lands will be void and not merely voidable for properly safeguarding and protecting the interests of the Scheduled Castes and Scheduled Tribes for whose benefit only these lands had been granted. Even in the absence of any such statutory provisions, the transfer of granted lands in contravention of the terms of the grant or in breach of any law, rule or regulation covering such grant will clearly be voidable and the resumption of such granted lands after avoiding the voidable transfers in accordance with law will be permitted. Avoidance of such voidable transfers and resumption of the granted lands through process of law is bound to take time. Any negligence and delay on the part of the authorities entitled to take action to avoid such transfers through appropriate legal process for resumption of such grant may be further impediments in the matter of avoiding such transfers and resumption of possession of the granted lands. Prolonged legal proceedings will undoubtedly be prejudicial to the interests of the members of the Scheduled Castes and Scheduled Tribes for whose benefit the granted lands are intended to be resumed. As transfers of granted lands in contravention of the terms of the grant or any law, regulation or rule governing such grants can be legally avoided and possession of such lands can be recovered through process of law, it must be held that the Legislature for the purpose of avoiding delay and harassment of protracted litigation and in furthering its object of speedy restoration of these granted lands to the members of the weaker communities is perfectly competent to make suitable provision for resumption of such granted lands by stipulating in the enactment that transfers of such lands in contravention of the terms of the grant or any regulation, rule or law regulating such grant will be void and providing a suitable procedure consistent with the principles of natural justice for achieving this purpose without recourse to prolonged litigation in court in the larger interests of benefiting the members of the Scheduled Castes and Scheduled Tribes."
(underlining by this Court)
11. The Hon'ble Apex Court has been prophetic in rendering the said ruling by observing that, in statues where no limitation is provided, the Authorities and the State must act consciously and if the process of invoking the provisions of statute is delayed and is initiated after a long lapse of time, the delay by itself would act as an impediment. The action on the application filed by the third respondent after more than 30 years cannot by any standards or parameters be construed as being made within a reasonable period and hence, cannot be sustained. Hence, the contention of the learned counsel for the 3rd respondent is liable to be rejected.
12. It is relevant to state the principle enunciated by the Hon'ble Apex Court that the exercise of power vested in an authority should be exercised in a reasonable manner and more importantly even a reasonable time more so, when time is not stipulated under the statute is not a principle of recent origins and the Hon'ble Apex Court way back in 1983 itself has enunciated the principle in the case of [PRECEDENT] where the issue involved was one of eviction of a tenant and the Hon'ble Apex Court has held that where the time limit for taking action for eviction is not stipulated in the statute, the eviction after an unreasonable long lapse of time on the ground of initial occupation of the premises being unlawful is not sustainable. In para.12 the Hon'ble Apex Court has held thus:
"12. What is stated hereinbefore is sufficient to quash and set aside the order of the House Allotment Officer. However, there is one more aspect of the matter which we cannot overlook. The appellant entered the premises in 1954. There have been numerous proceedings between him and the late [ENTITY] who let out the premises to the appellant but no one ever raised the question whether the appellant had entered the premises in contravention of clause 22(2). [ENTITY] died, no one raised the controversy about the entry of the appellant in the premises as being unauthorised or in contravention of clause 22. [ENTITY] in his life time tried to obtain possession of the premises from the appellant alleging grounds available to him under the Rent Control Order other than unauthorized entry. This would permit an inference that [ENTITY] accepted the appellant as his tenant and his tenancy did not suffer from any infirmity. After [ENTITY] died, his successor-in-interest one Smt. [ENTITY] did not raise any controversy about the occupation of the premises by the appellant. One Mr. S.P. Pathak, a total stranger has come forward to complain about the unauthorised entry of the appellant in the premises. The unauthorised entry according to the appellant was in the year 1954. Appellant retired in 1967. [ENTITY] was alive in 1967. If appellant came into the premises because he was holding an office of profit, obviously [ENTITY] would not miss the opportunity to evict the appellant because he was otherwise also trying to do the same thing. Rent was accepted without question from the appellant by [ENTITY] till his death and thereafter. Could he be at this distance of time, thrown out on the ground that his initial entry was unauthorized. To slightly differently formulate the proposition, could the initial unauthorized entry, if there be any, permit a House Allotment Officer, 22 years after the entry, to evict the appellant on the short ground that he entered the premises in contravention of clause 22(2) ? Undoubtedly, power is conferred on the Collector to see that the provisions of the Rent Control Order which disclosed a public policy are effectively implemented and if the Collector therefore, comes across information that there is a contravention, he is clothed with adequate power to set right the contravention by ejecting anyone who comes into the premises in contravention of the provisions. But when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time. Undoubtedly, no limitation is prescribed in this behalf but one would stand aghast that a landlord to some extent in pari delicto could turn the tables against the person who was in possession for 22 years as a tenant. In such a situation, even though the House Allotment Officer was to reach an affirmative conclusion that the initial entry 22 years back was an unauthorised entry and that failure to vacate premises till 9 years after retirement was not proper, yet it was not obligatory upon him to pass a peremptory order of eviction in the manner in which he has done. In such a situation, it would be open to him not to evict the appellant. In this connection, we may refer to [PRECEDENT] wherein one [ENTITY] who came into possession of premises without an order of allotment in his favour as required by [SECTION] of the [ACT], was permitted to retain the premises by treating his occupation lawful and this court declined to interfere with that order. No doubt it must be confessed that [SECTION] conferred power on the District Magistrate to take action against unauthorised occupation in contravention of the provisions of the [ACT], but there was a proviso to the section which enabled the District Magistrate not to evict a person found to be in unauthorized occupation, if the District Magistrate was satisfied that there has been undue delay or otherwise it is inexpedient to do so. There is no such proviso to clause 28 which confers power on the Collector to take necessary action for the purpose of securing compliance with the Rent Control Order. But as stated earlier, where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercise of power inheres its exercise within a reasonable time. This is too well established to need buttressing by a precedent. However, one is readily available in [PRECEDENT]. In that case Commissioner exercised suo motu revisional jurisdiction under [SECTION] of the [ACT] which did not prescribe any period of limitation for exercise of revisional jurisdiction. The Commissioner exercised revisional jurisdiction one year after the Collector made the order which was sought to be revised. The High Court set aside the order of the Commissioner. In the appeal by State of Gujarat, this Court declined to interfere holding inter alia that the revisional power in the absence of prescribed period of limitation must be exercised within a reasonable time and period of one year was held to be too late. This aspect must be present to the mind of House Allotment Officer before just rushing in on an unproved technical contravention brought to his notice contrived by the successor-in- interest of the deceased landlord, and evicting the appellant 22 years after his entry and 9 years after his retirement on the short ground that his entry in the year 1954 was in contravention of clause 22(2)."
13. The above decision has been reiterated by the Hon'ble Apex Court in its subsequent judgment in the case of [PRECEDENT] wherein at para.10 referring to the ruling in the case of [PRECEDENT], held that where the statute does not prescribe the time limit, same has to be exercised within a reasonable time be it suo motu or otherwise. It was pleased to hold that the reasonable period under the [ACT] could be three years subject to exceptional circumstances and categorically held that the exercise of revisional power after lapse of 17 years can by no stretch of imagination be construed as being within a reasonable time. The observation of the Hon'ble Apex Court in para.10,11 and 12 is reproduced below.
'10. Recently, in the case of [PRECEDENT] while dealing with the power of revision under [SECTION] of the [ACT], it has been held:
(SCC p.367, paras 17-19) "17. A bare reading of [SECTION] of the Act would reveal that although no period of limitation has been prescribed therefore, the same would not mean that the suo motu power can be exercised at any time.
18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period.
What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors.
19. Revisional jurisdiction, in our opinion, should ordinarily be exercised within a period of three years having regard to the purport in terms of the said Act. In any event, the same should not exceed the period of five years. The view of the High Court, thus, cannot be said to be unreasonable. Reasonable period, keeping in view the discussions made hereinbefore, must be found out from the statutory scheme. As indicated hereinbefore, maximum period of limitation provided for in [SECTION] of the Act is five years."
11. It seems to be fairly settled that if a statute does not prescribed the time-limit for exercise of revisional power, it does not mean that such power can be exercises at any time;
rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is playing that exercise of such power within reasonable time is inherent therein.
12. Ordinarily, the reasonable period within which the power of revision may be exercised would be 3 years under [SECTION] of the [ACT] subject, of course, to the exceptional circumstances in a given case, but surely exercise of revisional power after a lapse of 17 years is not a reasonable time. Invocation of revisional power by the Sub-Divisional Officer under [SECTION] of the [ACT] is plainly an abuse of process in the facts and circumstance of the case assuming that the order of the Tahsildar passed on 30.03.1976 is flawd and legally not correct.'
14. Thus, without exception and across various fields of law, the Apex Court has categorically stated the law in respect of exercise of powers/jurisdiction under a statute where no limitation is stipulated. Hence, law in this regard is no more res integra. Apart from the embargo placed by the Apex Court in exercise of jurisdiction by the authorities under the statute where no limitation is specified, the Apex Court has also settled the law in respect of delay on the part of litigants in seeking redressal of the grievances.
15. Law on the point of delay and laches is well settled by a catena of Judgments be it, in the matter of land acquisition or in the field of service law. The Apex Court has been pleased to hold that unexplained gross delay would be fatal to the right of the party, to seek a judicial adjudication of his rights.
16. The law settled by the Apex Court squarely applies to the facts of the instant case also. The grant was of the year 1934 and the first sale deed was executed on 2.9.1971, the second sale in the year 1973 and the last sale transaction was effected on 27.2.1988. In effect, third party rights came to be created and the parties were also in settled positions.
17. In this context, gainful reference could be made to the catena of decisions and the recent decisions in this regard are:
1) [PRECEDENT] in the case of [PRECEDENT] wherein the Hon'ble Apex Court has cautioned the High Courts not to entertain the writ petitions where there is inordinate delay while exercising jurisdiction under [SECTION] of the [ACT].
2) Similarly in the case of THE [PRECEDENT] wherein it has been opined that the real test for sound exercise of discretion by the High Court in this regard is not the physical running of time such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the writ Court, the rights of the third parties have come into being which should not be allowed to disturb unless there is reasonable explanation for the delay.
18. On the ground of gross delay and laches also, the application by the respondents under [SECTION] of the Act requires to be rejected and consequently, the writ petition requires to be allowed.
19. It is not in dispute that the [ACT] came into force with effect from 1.1.1979. Assuming that either the grantee or his legal representatives were keen on establishing the right vested in them under the provisions of [SECTION], they were required to act in a diligent manner. In the instant case, diligence is woefully lacking. The party wakes up and gears into action after 32 years and there is absolutely no ground urged which is worthy of being called as explanation for the gross and inordinate delay. Hence, even on this ground, the writ petition is liable to be allowed.
In view of the above, the writ petition is allowed. The order impugned at Annexure-A is quashed. Consequently, the application in [CASE NUMBER] filed by the respondent No.4 stands rejected.
JUDGE ST/NR