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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
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
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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.
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
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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 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
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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
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
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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
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
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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
cannot be permitted after more than 39 years. The question of
laches would come into play. 39 years having been passed, it
would be highly unreasonable, unjust and inequitable, as well as
against law to grant any relief to the original grantee-the petitioner-
appellant, permitting restoration of the land and to treat the transfer
of the land taken place long back to be null and void.
6.1 In view of the reasons and discussion as above, the
judgment and order of the learned Single Judge does not book any
error.
7. The appeal is meritless and the same is dismissed.
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In view of dismissal of the appeal, the interlocutory
application, as may be pending, would not survive and it stands
accordingly disposed of.
Sd/-
(N. V. ANJARIA)
CHIEF JUSTICE
Sd/-
(M.I.ARUN)
JUDGE
AHB
