Karnataka High Court
Smt Jayamma vs The Deputy Commissioner on 21 January, 2025
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WA No. 34 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST 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. 34 OF 2024 (SC-ST)
BETWEEN:
1. SMT. JAYAMMA
W/O SRI HANUMANTHAPPA
AGED ABOUT 55 YEARS
R/AT DANDIGENAHALLI VILLAGE
CHANNAGIRI TALUK
DAVANAGERE DISTRICT-577213
...APPELLANT
(BY SRI ROHIT PRAKASH MUNJOJI, ADVOCATE FOR
SRI MARUTHI G B, ADVOCATE)
AND:
Digitally signed by
VASANTHAKUMARY
BK
Location: High Court
1. THE DEPUTY COMMISSIONER
of Karnataka DAVANAGERE DISTRICT
AT DAVANAGERE-577001
2. THE ASSISTANT COMMISSIONER
DAVANAGERE SUB-DIVISION
AT DAVANAGERE-577001
3. SRI KADAPPA H
S/O LATE NINGAPPA
AGED ABOUT 81 YEARS
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WA No. 34 of 2024
R/AT THIPPAGONDANAHALLI
VILLAGE AND POST
CHANNAGIRI TALUK
DAVANAGERE DISTRICT-577213
...RESPONDENTS
(BY SRI K S HARISH, GOVERNMENT ADVOCATE FOR R-1 & 2)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET
ASIDE THE JUDGMENT/ORDER DATED 27.08.2021 PASSED
BY THE LEARNED SINGLE JUDGE IN W.P.NO.9881/2020
(KLR-RES) AND CONSEQUENTLY ALLOW THE WRIT APPEAL.
THIS APPEAL, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
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. Rohit Prakash Munjoji for
learned advocate Mr. G.B. Maruthi for the appellant and learned
Government Advocate Mr. K.S. Harish for respondent Nos.1 and 2.
2. The challenge in this appeal by the appellant-the original
respondent No.3 is directed against the judgment and order dated
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27.08.2021 of learned Single Judge, whereby the writ petition of
the original petitioner-respondent No.3 herein came to be allowed.
2.1 The petitioner was the purchaser of the land bearing Survey
No.84/P21 admeasuring 2.20 Acres situated at Diggenahalli
Village, Channagiri Taluka, Davanagere District.
2.2 The challenge in the petition was to the orders passed by the
Assistant Commissioner and the Deputy Commissioner-respondent
Nos.2 and 1 herein respectively, who had allowed the application of
the appellant-respondent No.3 for restoration and restitution of the
land under the provisions of the Karnataka Scheduled Castes and
Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act,
1978.
3. Noticing the facts in the background, the land in question
was granted to one Siddappa, who was the father of respondent
No.3, on 09.09.1960. After the demise of the said Siddappa, his
mother sold the property to the petitioner under a Sale Deed dated
05.02.1994.
3.1 It was after a delay of 17 years that the original grantee-
respondent No.3 made an application before the Assistant
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Commissioner under the aforementioned Act of 1978 contending
that the transfer was in breach of the provisions of the Act, in
particular Section 4(1) of the Act. The Assistant Commissioner
allowed the application and the Deputy Commissioner confirmed
the order of the Assistant Commissioner. Consequently, the writ
petition came to be filed by the petitioner-purchaser.
3.2 Learned Single Judge, noticing that there is a delay of 17
years, relied on the decision of the Hon'ble Supreme Court in
NEKKANTI RAMA LAKSHMI Vs STATE OF KARNATAKA AND
ANOTHER ([2020] 14 SCC 232) to hold that the application of
respondent No.3 could not have been entertained by the authorities
after unreasonable delay of 17 years.
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
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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-
(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
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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
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."
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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
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
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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
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
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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
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.
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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),
"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
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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
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
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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
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
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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 view of the aforesaid reasons and discussions, the
challenge to the impugned judgment and order of learned Single
Judge is devoid of merit. No ground raised in the memo of appeal
would hold good in law. Learned Single Judge was eminently
justified in setting aside the orders of the Assistant Commissioner
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confirmed by the Deputy Commissioner and thereby allowing the
petition of the purchaser.
7. The appeal is meritless and the same is dismissed.
Sd/-
(N. V. ANJARIA)
CHIEF JUSTICE
Sd/-
(M.I.ARUN)
JUDGE
BKV
