Karnataka High Court

Shanthamma vs State Of Karnataka on 9 January, 2025

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                                                    WA No. 885 of 2024




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 9TH DAY OF JANUARY, 2025

                                      PRESENT
                     THE HON'BLE MR N. V. ANJARIA, CHIEF JUSTICE
                                         AND
                          THE HON'BLE MR JUSTICE M.I.ARUN
                         WRIT APPEAL NO. 885 OF 2024 (SC-ST)
              BETWEEN:

              1.   SHANTHAMMA
                   D/O BYATAPPA
                   W/O MUNIYAPPA
                   AGED 50 YEARS
                   R/O PERUMACHANAHALLI VILLAGE
                   KAIVARA HOBLI
                   CHINTAMANI TALUIK
                   CHIKKABALLAPUR DISTRICT
                   PIN - 563 126.
                                                         ...APPELLANT
              (BY SRI D.S. RAMACHANDRA REDDY, ADVOCATE [V/C])
Digitally
signed by      AND:
PRABHAKAR
SWETHA
KRISHNAN       1. STATE OF KARNATAKA
Location: High    REPRESENTED BY ITS PRINCIPAL SECRETARY
Court of          REVENUE DEPARTMENT
Karnataka         MULTISTOREYED BUILDIGN
                  DR. AMBEDKAR VEEDHI,
                  BENGALURU - 560 001.

              2.   THE DEPUTY COMMISSIONER
                   CHICKBALLAPUR DISTRICT
                   CHIKKABALLAPUR - 562 101.
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                                          WA No. 885 of 2024




3.   THE ASSISTANT COMMISSIONER
     CHICKBALLAPUR SUB DIVISION
     CHICKBALLAPUR - 562 101.

4.   VENKATESHAPPA
     S/O EARALAPPA
     AGED 70 YEARS
     R/O KONGANAHALLI VILLAGE
     KAIVARA HOBLI,
     CHINTAMANI TALUK
     CHICKBALALPUR DISTRICT - 563 128.

5.   BYRAREDDY
     S/O EARALAPPA
     AGED 65 YEARS
     R/O KONGANAHALLI VILLAGE
     KAIVARA HOBLI,
     CHINTAMANI TALUK
     CHICKBALLAPUR DISTRICT - 563 128.
                                            ...RESPONDENTS
(BY SRI K.S. HARISH, GOVT. ADVOCATE FOR R-1 TO R-3 &
 SRI N.K. RAMESH, ADVOCATE FOR R-4 & R-5)

      THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA

HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER

DATED 22.04.2024, MADE IN WRIT PETITION No. 9526/2024

(SC-ST) AND ALLOW WRIT PETITION BY No. 9256/2024 BY

GRANTING THE RELIEFS PRAYED FOR IN IT AND ETC.


      THIS APPEAL COMING ON FOR PRELIMINARY HEARING

THIS DAY JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                              WA No. 885 of 2024




CORAM: HON'BLE THE CHIEF JUSTICE MR. JUSTICE
       N. V. ANJARIA
       and
       HON'BLE MR JUSTICE M.I.ARUN


                       ORAL JUDGMENT

(PER: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N. V. ANJARIA)

Heard learned advocate Mr. D.S. Ramachandra Reddy for

the appellant, learned Government Advocate Mr. K.S. Harish for

respondent Nos.1 to 3 and learned advocate Mr. N.K. Ramesh for

respondent Nos.4 and 5.

2. This appeal is directed against the judgment and order dated

22.04.2024 of learned Single Judge, whereby the petition of the

appellant-petitioner came to be dismissed.

3. The challenge in the original petition by the appellant -

petitioner was to the orders dated 05.01.2024 passed by the

respondent No.2 - the Deputy Commissioner which confirmed the

order dated 06.12.2021 of the Assistant Commissioner, whereby

the authorities refused the prayer of the appellant-petitioner

seeking resumption and restoration of the granted land under

Section 5(1) of the the Karntaka Scheduled Castes and Scheduled

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Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. The

rejection of the application and prayer of the petitioner was on the

ground delay and laches.

3.1 The land in question was of old Survey No.68 (new Survey

No.197) admeasuring 4 Acres situated at Perumachanahalli

Village, Kaivara Hobli, Chintamani Taluka, Chikkaballapura District

which was granted to one Sri Byatappa by the order dated

07.06.1961 and saguvali chit was issued on 14.10.1962. Sri

Byatappa was the father of the petitioner, who belonged to Bedar

community.

3.2 The said Sri Byatappa sold the said land to one Sri Erlappa

on 26.06.1975 who happens to be the father of respondent Nos.4

and 5. The Assistant Commissioner, Chikkaballapura initiated suo

motu proceedings in respect of the said sale under the provisions

of 1978 Act and closed the proceedings stating that the original

grantee belonged to Bedar community and could not have been

treated as the person belonging to schedule tribe.

3.3 Again on 16.01.2014, the petitioner filed an application

before respondent No.3 - the Assistant Commissioner for

resumption and restoration, which application culminated into the

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orders dated 06.12.2021 and 05.01.2024 passed by the Assistant

Commissioner and Deputy Commissioner respectively.

3.4 Learned Single Judge, noticed the facts about grant of land

to Sri Byatappa on 07.06.1961, selling the same to one Sri Erlappa

and the factum of respondent No.3 initiating suo motu under

Section 5(1) of 1978 Act for inquiry. Respondent No.3 - the

Assistant Commissioner passed the order dated 28.07.1981

dropping the inquiry. Noticeably, the said order dated 28.07.1981

was not challenged by the original grantee and it attained the

finality.

3.5 Learned Single Judge has rightly observed that its finality will

bound the appellant-petitioner. Following was reasoned by learned

Single Judge,

" The original grantee has accepted the said order. After lapse of 19 years, the daughter of original grantee filed an application for restoration of possession before the Assistant Commissioner. The Assistant Commissioner dismissed the application on the ground of delay. The petitioner aggrieved by the order passed by the Assistant Commissioner, preferred an appeal in RA/SCST/36/21-22. The Deputy Commissioner upheld the order passed by respondent No.3 and consequently, dismissed the appeal filed by the petitioner"

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4. The legal provisions and development of law in the subject

deserve to be noticed. While 'granted land' is defined in Section

3(b) of the Act, Section 4 of the Act deals with the prohibition of

transfer of granted lands, to provide that notwithstanding anything

in any law, agreement, contract or instrument, any transfer of

granted land made either before or commencement of the Act, in

terms of the contravention of the grant or in contravention of the

law in that regard or in breach of sub-Section (2) of Section 4, such

transfer shall be treated as null and void, not to give any right, title

or interest in favour of the person to whom the land is transferred.

4.1 As per sub-Section (2), no person shall after commencement

of this Act, transfer or acquire by transfer any granted land without

the previous permission of the Government. Under sub-Section

(3), the provisions in sub-Sections (1) and (2) are made applicable

to the sale of any land in execution of any decree or award, etc., of

the Court. Section 5 of the Act deals with the resumption and

restitution of granted lands.

4.2 Section 5 as it stood originally, reads as under,

"5. Resumption and restitution of granted lands-

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(1) Where, on application by any interested person or on information given in writing by any person or suo-motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under Sub-section (1) of Section 4, he may,-

(a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed:

Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard;

(b) restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir; such land shall be deemed to have vested in the Government free form all encumbrances. The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the rules relating to grant of land.

(1-A) After an enquiry referred to in Sub-section (1) the Assistant Commissioner may, if he is satisfied that transfer of any granted land is not null and void pass an order accordingly.

(2) Subject to the orders of the Deputy Commissioner under Section 5-А, any order passed under sub-sections (1) and (1-A) shall be final and shall not be questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about

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to be taken by the Assistant Commissioner in pursuance of any power conferred by or under this Act.

(3) For the purposes of this Section, where any granted land is in the possession of a person, other then the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of Section 4."

4.3 It would be noticed from the aforesaid provision that there is

no prescription of time limit for resumption or restitution of the land

which is null and void under Section 4(1) of the Act. However,

various judicial decisions, prominent amongst is Nekkanti Rama

Lakshmi (supra), which was in the very context of Sections 4 and

5 of the Act. It was held therein that the application made for

restitution of the land after delay of 25 years, was not liable to be

acceptable in law, as it was after unreasonable delay. It was held

that there was no annulment of transfer could be allowed.

4.3.1 It was observed and held in Nekkanti Rama Lakshmi

(supra),

"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 having the transfer annulled as void under Section 4 of the Act. This section does

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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 Chhedi Lal Yadav & Ors. vs. Hari Kishore Yadav & Ors., [2017 (6) Scale 459] and also in the case of Ningappa vs. Deputy 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.'' (para 8) 4.3.2 It was further stated,

"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, 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. ......"

4.4 While the aforesaid law that relief of setting aside of transfer

could not be granted after unreasonably long period and the

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applications made under Section 5 for restitution or resumption of

the land by a person could not be acted upon in favour of such

person on the ground of delay, the legislature intervened to

proceed to amend Section 5 by virtue of the Karnataka Scheduled

Caste and Scheduled Tribes (Prohibition of Transfer of Certain

Lands) (Amendment) Act, 2023, notified in the Gazette Notification

dated 27.07.2023. Thereby sub-clauses (c) and (d) were inserted,

namely,

"(c) Notwithstanding anything contained 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."

4.5 It was stated at the bar that the validity of the aforesaid

amendment is challenged in Writ Petition No.27496 of 2023 which

is pending before the learned Single Judge of this Court. This

judgment does not touch anything on merits of the said validity

proceedings and it is clarified that the said proceedings before

learned Single Judge shall be decided on their own merits.

4.6 However, the aspects which emerged in light of the law laid

down in Nekkanti Rama Lakshmi (supra), vis-à-vis the

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amendment in Section 5 and the situation obtained, came to be

dealt with by the Coordinate Bench of this Court at Dharwad in

Smt. Gouramma alias Gangamma vs. Deputy Commissioner,

Haveri, which was Writ Appeal No.100101 of 2024 decided on

29.07.2024.

4.6.1 After noticing the amendment in Section 5, the Division

Bench observed thus, in para 3(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."

4.6.2 It was observed that in Nekkanti Rama Lakshmi (supra),

did not speak of limitation period, but focused on the long lapse of

time in making the application for restitution of the land, by quoting

paragraph 8 above from the said decision, the Division Bench then

held as per para 3(f),

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

4.7 From the decision of the Supreme Court in Union of India vs.

N. Murugesan [(2022) 2 SCC 25], the Division Bench highlighted

the nice distinction between 'delay and laches', as against

'limitation'. It was observed that the 'limitation' is a prescription of

time for taking an action as contemplated by the legislature,

whereas the concept of 'delay and laches' has a different

connotation to operate.

4.8 The Coordinate Bench of this Court in Smt. Gouramma

(supra), proceeded on the above reasoning to clarify that the

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issues were examined without touching the aspects of validity of

amendment which is pending adjudication. It was held in

Smt. Gouramma (supra) that on the ground of laches, the court

would be justified in denying the relief of setting aside the transfer

and restoring the land to the applicant when he has approached

the court after unreasonable delay and his approaching the court is

marred by laches.

5. The Supreme Court in N. Murugesan (supra), explained the

word 'laches' thus,

"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 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."

(para 21)

5.1 The Supreme Court proceeded to observe that the remedy for

which the party knocks the doors of the Court may not be provided

to him on equitable grounds when such party is guilty of indolence

and his action suffers from laches,

"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

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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."

(para 22)

5.2 Though the principles governing overlap, the delay and

laches has the facet in equity. Delay is the genus to which the

laches and acquiescence are species. The jurisprudential concepts

of delay, laches and acquiescence have their own colour and

connotation and conceptually often different from crossing the

period of limitation prescribed in the statutory provision. Limitation

binds the litigant in terms of initiating a legal action or filing any

proceedings. Laches concedes an element of culpability in

allowing time to pass by in commencing the action in law.

6. In light of the above discussion and the position of law that

would emerge, in the facts of the case, the restoration of the land