Karnataka High Court

Sri.Munirathnappa vs Khasim Khan on 11 November, 2024

Author: S.G.Pandit

Bench: S.G.Pandit

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                                                         WA No. 1233 of 2023




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 11TH DAY OF NOVEMBER, 2024

                                            PRESENT
                               THE HON'BLE MR JUSTICE S.G.PANDIT
                                                  AND
                      THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
                             WRIT APPEAL NO. 1233 OF 2023 (SC-ST)

                      BETWEEN:

                      SRI. MUNIRATHNAPPA
                      S/O LATE MUNTHAYAPPA @ MUNITHAYIGA
                      AGED ABOUT 63 YEARS
                      R/A GONAKANAHALLI VILLAGE
                      JADIGENAHALLI HOBLI,
                      HOSKOTE TALUK-562114.
                                                                 ...APPELLANT
                      (BY SRI. GANGADHARAIAH A N., ADVOCATE)

                      AND:

                           KHASIM KHAN
Digitally signed by
SHAKAMBARI                 SINCE DEAD BY HIS LRS
Location: HIGH
COURT OF
KARNATAKA             1.   ASHRAF JAN
                           S/O LATE KHASIM KHAN
                           AGED ABOUT 57 YEARS

                      2.   MUJAHID PASHA
                           S/O LATE KHASIM KHAN
                           AGED ABOUT 37 YEARS

                      3.   ASIF KHAN
                           S/O LATE KHASIM KHAN
                           AGED ABOUT 35 YEARS
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                                      WA No. 1233 of 2023




4.   SADIQ PASHA
     S/O LATE KHASIM KHAN
     AGED ABOUT 32 YEARS

5.   NAUSHAD KHAN
     S/O LATE KHASIM KHAN
     AGED ABOUT 31 YEARS

     ALL ARE R/A: NO.93,
     RUBY ROYAL LAYOUT
     WARD NO.20, DANDUPALYA
     HOSAKOTE, MALUR ROAD
     BENGALURU RURAL DISTRICT
     HOSAKOTE TALUK-562114.

6.   THE ASSISTANT COMMISSIONER
     DODDABALLAPURA SUB-DIVISION
     DODABALLAPURA-561203

7.   THE DEPUTY COMMISSIONER AND
     DISTRICT MAGISTRATE
     BENGALURU RURAL DISTRICT
     DISTRICT ADMINISTRATIVE BHAVAN
     BEERASANDRA VILLAGE
     KUNDANA HOBLI,
     DEVANAHALLI TALUK-562110.
                                          ...RESPONDENTS
(BY SMT. B. SUKANYA BALIGA, AGA FOR R6 & R7)

     THIS WRIT APPEAL IS FILED U/SEC.4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO CALL FOR
RECORDS IN WP NO.6066/2020 AND SET ASIDE THE
IMPUGNED ORDER PASSED BY THE LEARNED SINGLE JUDGE IN
WP NO.6066/2020 VIDE ORDER DATED 28.07.2023 AND ISSUE
WRIT OR ORDER AND PASS SUCH OTHER RELIEF/S AS THIS
HONBLE COURT DEEMS FIT TO PASS IN THE CIRCUMSTANCES
OF THE CASE AND ETC.

     THIS WRIT APPEAL, COMING ON FOR ORDERS, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                       WA No. 1233 of 2023




CORAM: HON'BLE MR JUSTICE S.G.PANDIT
       AND
       HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR


                    ORAL JUDGMENT

(PER: HON'BLE MR JUSTICE S.G.PANDIT)

The appellant, who is son of the original grantee is in

appeal questioning the correctness and legality of the

order dated 28.07.2023 passed by the learned Single

Judge in W.P.No.6066/2020, wherein the appellant/

petitioner had challenged the order of the 7th respondent-

Deputy Commissioner dated 21.10.2019, who in turn had

set aside the order of restoration passed by the Assistant

Commissioner dated 30.06.2017.

2. Heard learned Counsel-Sri.Gangadharaiah A.N.,

for the appellant and learned Additional Government

Advocate-Smt.B.Sukanya Baliga, for respondents No.6 and

7-State. Perused the writ appeal papers.

3. Learned counsel for the appellant would submit

that the father of the appellant was granted land by order

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dated 20.06.1949 and the father of the appellant sold the

portion of the granted land on 17.10.1966. The first

purchaser, in turn, sold the land in favour of father of the

first respondent herein. More than 51 years thereafter, the

son of the original grantee filed an Application before the

competent authority under Section 5 of Karnataka

Scheduled Caste and Scheduled Tribes (Prohibition of

Transfer of Certain Lands) Act, 1978 (for short PTCL Act)

praying for restoration of the land. The Assistant

Commissioner by order dated 30.06.2017 ordered

restoration of the land, against which the first respondent

herein filed an appeal before respondent No.7-Deputy

Commissioner. The Deputy Commissioner, by order dated

21.10.2019 set aside the order passed by the Assistant

Commissioner. Being aggrieved by the said order, the

appellant herein filed a writ petition in W.P.No.6066/2020.

The learned Single Judge by order dated 28.07.2023

dismissed the writ petition solely on the ground of delay

and laches. Questioning the said order, the appellant is

before this Court in this appeal.

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4. Learned counsel for the appellant submits that the

learned Single Judge could not have dismissed the writ

petition solely on the ground of delay and laches and

without noticing the amendment brought to Section 5 of

the PTCL Act. Learned Counsel would submit that

amendment was brought to Section 5 of the PTCL Act, to

the effect that there is no limitation to seek restoration

under Section 5 of the PTCL Act. Further, learned Counsel

would submit that challenging the validity of the said

amendment, the writ petitions are pending before this

Court and when the Statute itself states that there is no

limitation for seeking restoration of the land, learned

Counsel submits that the learned Single Judge could not

have dismissed the petition solely on the ground of delay

and laches and prays for allowing the appeal.

5. Per contra, learned Government Advocate

appearing on behalf of the respondent-State would submit

that the similar contentions are considered and answered

by a co-ordinate Bench of this Court in the case of

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Smt.Gowramma @ Gangamma Vs. State of

Karnataka and Others, in W.A.No.100101/2014,

which was disposed of on 29.07.2024, thus prays for

dismissal of the appeal.

6. Having heard the learned Counsels for both the

parties and having perused the entire appeal papers, we

are of the opinion that the appellant has not made out a

ground to interfere with the impugned order for the

following reasons:

Admittedly, the father of the appellant herein was

granted land on 26.06.1949, whereas the first sale had

taken place on 17.10.1966. The application for restoration

under Section 5 of the PTCL Act was filed by the appellant

in the year 2010 nearly after 50 years from the date of

first sale and more than 40 years of the PTCL Act coming

into force. No explanation or reason is assigned for such

an inordinate delay in approaching the authorities after

enactment of PTCL Act, 1978 or before the Act. There was

no limitation prescribed even before the amendment was

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brought to Section 5 of the PTCL Act. Considering the

provisions contained in Section 5 of the PTCL Act, the

Hon'ble Apex Court in the case of Nekkanti Rama

Lakshmi Vs. State of Karnataka and another and

Vivek M.Hinduja Vs. M.Aswatha reported in (2020) 14

SCC 232 as well as (2019) 1 Kant LJ 819 SC has

clearly held that if the proceedings under the PTCL Act, is

not initiated within reasonable time, the authorities would

not get jurisdiction to entertain the proceedings.

7. A co-ordinate Bench had an occasion to consider

identical contention raised with regard to amendment

brought to Section 5 of the Act in the case of

Smt.Gouramma @ Gangamma (supra). The relevant

portions of the said decision reads as follows:

"3. Having heard the learned counsel appearing for the appellant and the learned Government Advocate, we decline indulgence in the matter for the following reasons:

(a) The subject land does not answer the definition of 'granted land' in terms of Section 2(b) of the 1978 Act cannot be much disputed, inasmuch as

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the grant was not on account of social status of the grantee. The said grant was originally made in 1930 and later in 1958. The sale of this land happened vide registered Sale Deed dated 05.12.1972. The buyer, in turn, sold a part of the land to one Mr.Mahadevappa vide registered Sale Deed dated 16.04.1976. Admittedly, the resumption application filed earlier was rejected vide order dated 30.12.2002 and appeal against the same also came to be turned down vide order 27.08.2004. Even prior to this, there were resumption orders that were set aside by a learned Single Judge in W.P. No.2608/2000 vide order dated 22.11.2000, remitting the matter back for fresh consideration. That is how the subsequent application came to be moved; that was rejected vide order dated 30.12.2002. Even appeal met the same fate vide order 23.12.2003.

(b) When above was the state of things as per record, it is ununderstandable as to how persons claiming under the original grantee could move another application afresh on 27.08.2004. The Assistant Commissioner could not have allowed the said application vide order dated 22.11.2004. It sounds strange that even the Deputy Commissioner dismissed the appeal against the

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same vide order dated 17.03.2011. The records reveal that the first alienation took place vide Sale Deed dated 05.12.1972 and the subject application for resumption was filed on 27.08.2004. In the meanwhile, the Re-grant of the land was obtained since it was a "hereditary land" falling within the precincts of the Karnataka Village Offices Abolition Act, 1961. Apparently, there is a time gap of about thirty- two years spanning between alienation and the filing of resumption application. There is absolutely no explanation whatsoever for the laches that militate on record and against justice. Thus, the case squarely fits into the Apex Court decision in Nekkanti Rama Lakshmi vs State Of Karnataka, that tardy and belated claims should not be favoured. This reasoning has animated the impugned judgment, rightly and therefore, the same cannot be faltered.

(c) The vehement submission of learned counsel for the appellant that Act 30 of 2023 has amended the provisions of Section 5 of the 1978 Act by adding clauses (c) & (d) to sub-section (1) of the said Section and therefore, the concept of "limitation and delay" has to remain miles away. These new clauses read as under:

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"(c) notwithstanding anything conained in any law, there shall be no limitation of time to invoke the provisions of this Act.

(d) the provisions of clause (c) shall apply to all cases pending before all the competent authorities and all Courts of Law adjudicating the cases under this section."

It hardly needs to be stated that at no point of time, the 1978 Act prescribed any period of limitation for moving application for the resumption of granted land after it is alienated.

(d) The Amendment Act that is made applicable with retrospective effect is only a duplication of the existing legal position. Such duplication happened even in English legislative history, hardly needs to be mentioned. The question of delay is a matter of limitation which this statute is silent about. Clauses (c) and (d), now introduced to Section 5(1) of the Act, do not bring any change in the statutory scheme. At the most, they are declaratory of what the statute has been all through, so far as the limitation period is concerned. Nobody disputes that there was no limitation period earlier and there is no limitation period now too. Laches, which would involve a host of factors, pertains to the Domain of Equity.

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(e) Nekkanti supra does not speak of "limitation period" at all. What it discusses is, the long lapse of time between alienation of granted land and the filing of claim for its resumption. Observations occurring in para 8 of the decision lend support to this view:

"8. However, the question that arises is with regard to terms of Section 5 of the Act which enables any interested person to make an application for havingthe transfer annulled as void under Section 4 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 Chhedi Lal Yadav & Ors. vs. Hari Kishore Yadav (D) Thr. Lrs. & Ors., 2017(6) SCALE 459 and also in the case of Ningappa vs. Dy. Commissioner & Ors. (C.A. No. 3131 of 2007, 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. 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-Rajappa 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, R. Rudrappa vs. Deputy Commissioner, 2000 (1) Karnataka Law Journal, 523, Maddurappa vs. State of

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Karnataka, 2006 (4) Karnataka Law Journal, 303 and G. Maregouda vs. The Deputy Commissioner, Chitradurga District, Chitradurga and Ors, 2000(2) Kr. L.J.Sh. N.4B holding that there is no limitation provided by Section 5 of the Act and, therefore, an application can be made at any time, are overruled..... "

(Emphasis is ours)

Apparently, the law declared by the Apex Court in the above case has not been altered by the subject amendment, even in the least.

(f) It may be true, that the legislative debates might have taken place about the observations of the Apex Court in Nekkanti and other such cases while passing the Amendment Bill. That per se does not lend credence to the contention that the said amendment intends to invalidate the law declared by the highest court of the country which it did after considering all aspects of the matter including the sense of equity & justice. If the Legislature intended to silence the voice of Nekkanti, it would have employed a different terminology. We repeat that, ordinarily, delay is decided by computing the period of limitation prescribed by law, whereas "laches" is decided keeping in view a host of factors. Cases are repleat in Law Reports relating to delay and laches in writ jurisdiction under Articles 12, 226 &

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227 of the Constitution of India. This is only to illustrate.

(g) There is a marked difference between 'delay & laches' that operate in equity and 'limitation & delay' that obtain in law. The following observations of the Apex Court in Union of India Vs. N.Murugesan make outthis point:

"Delay, laches and acquiescence

20. The principles governing delay, laches, and acquiescence are overlapping and interconnected on many occasions. However, they have their distinct characters and distinct elements. One can say that delay is the genus to which laches and acquiescence are species. Similarly, laches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, but not laches. These principles are common law principles, and perhaps one could identify that these principles find place in various statutes which restrict the period of limitation and create nonconsideration of condonation in certain circumstances.... The underlying principle governing these concepts would be one of estoppel. The question of prejudice is also an important issue to be taken note of by the court.

Laches.

21. The word "laches" is derived from the French language meaning "remissness and slackness". It thus involves unreasonable delay or negligence in pursuing a claim involving an equitable relief

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while causing prejudice to the other party. It is neglect on the part of a party to do an act which law requires while asserting a right, and therefore, must stand in the way of the party getting relief or remedy.

22. Two essential factors to be seen are the length of the delay and the nature of acts done during the interval. As stated, it would also involve acquiescence on the part of the party approaching the court apart from the change in position in the interregnum. Therefore, it would be unjustifiable for a Court of Equity to confer a remedy on a party who knocks its doors when his acts would indicate a waiver of such a right. By his conduct, he has put the other party in a particular position, and therefore, it would be unreasonable to facilitate a challenge before the court. Thus, a man responsible for his conduct on equity is not expected to be allowed to avail a remedy."

(h) We are told at the Bar that the subject Amendment has been put in challenge in W.P. No.27496/2023 and that, matter is pending consideration. We make it clear that construction of a statute is one thing and its validity is another. We do not want to say even a wordabout the validity, that is being examined by the learned Single Judge before whom the matter is pending. We have only placed our interpretation on the amended provisions of the Act and nothing beyond."

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8. There is no reason to disagree with view taken by

the co-ordinate Bench and we respectfully accept the

reasoning. Following the said decision and for the delay

and laches, the writ appeal stands dismissed.

9. In view of dismissal of the main appeal, pending

Interlocutory Applications do not survive for consideration

and are accordingly disposed of.

Sd/-

(S.G.PANDIT) JUDGE

Sd/-