SRI NARAYANAPPA v. PRABHAKAR

Judgment

2. THE SPECIAL DEPUTY COMMISSIONER BANGALORE DISTRICT OFFICE OF THE DEPUTY COMMISSIONER KANDAYA BHAVANA BANGALORE-560009 THE ASSISTANT COMMISSIONER BANGALORE NORTH SUB DIVISION KANDAYA BHAVANA BANGALORE-560009

3. SRI SHIVAPRADEEP S/O J M VISHWANATH - 2 - NC: 2024:KHC:51015-DB WA No. 879 of 2023 AGED ABOUT 73 YEARS R/O NO.154/A, IST MAIN R M V EXTENSION LOTTEGOLLAHALLI BANGALORE-560094

4. SMT HELEN MOREAU SINCE DECEASED BY HER LRS

4.A

SRI XAVIOUR PAUL S/O LATE ALEXANDER AGED ABOUT 48 YEARS

4.B SRI BASIL SEPTEM S/O LATE ALEXANDER AGED ABOUT 45 YEARS RESPONDENTS 4A AND 4B ARE R/A PARATHOTTAM VARAYAL POST, THALAPUZHA WAYANAD DIST KERALA STATE ALSO PRESENTLY AT NO.31/32, AMBHA NAGAR BEHIND APOORVA HOSPITAL CHIKKABANAVARA BENGALURU-560090 …RESPONDENTS (BY SRI K.S. HARISH, GA FOR R1 AND R2; SRI RAJAGOPALA NAIDU, ADVOCATE FOR R3) THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 26.06.2023 PASSEDE BY THE HON'BLE SINGLE JUDGE IN WRIT PETITION No. 41273/2010 (SC-ST) AND FURTHER BE PLEASED TO QUASH THE ORDER DATED 11.11.2010 PASSED BY THE 1ST RESPONDENT IN APPEAL No. SC.ST.(A) 63/2008- 09 PRODUCED AS ANNEXURE-D TO THE WRIT PETITION. - 3 - NC: 2024:KHC:51015-DB WA No. 879 of 2023 THIS APPEAL COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N. V. ANJARIA HON'BLE MR JUSTICE K. V. ARAVIND ORAL JUDGMENT (PER: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N. V. ANJARIA) Heard learned advocate Mr. K. Abhinav Anand for the appellant, learned Government Advocate Mr. K.S. Harish for respondent Nos.1 and 2 and learned advocate Mr. Rajagopala Naidu for respondent No.3.

2. The present appeal under Section 4 of the Karnataka High Court Act, 1961 is directed against judgment and order dated

26.06.2023 of learned Single Judge whereby the petition came to be dismissed.

2.1 The appellant-petitioner is the legal heir of the original grantee, who was granted land bearing Sy.No.31/15 admeasuring 2 Acres and 2 Guntas situated at Sriramanahalli - 4 - NC: 2024:KHC:51015-DB WA No. 879 of 2023 Village, Hesaraghatta Hobli, Bengaluru North. The original grantee was one Chikkapillaga.

2.2 The challenge before learned Single Judge by the petitioner- legal heir of the grantee was to the order dated 11.11.2010 passed by respondent No.1-the Special Deputy Commissioner, who had allowed the appeal filed by the purchaser of the land and had set aside the order passed by the Assistant Commissioner whereby, the transaction of sale was cancelled and the land was restored to the petitioner.

2.3 The appellate authority-the Special Deputy Commissioner set aside the said order, refused to restore the land which was sought for by the petitioner under Section 4 read with Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. (hereinafter referred as 'the Act').

3. Noticing the basic facts, the land in question was granted in favour of the said Chikkapillaga in the year 1949, who belonged to scheduled caste community. The said land came to be sold in the year 1967 in favour of H.T.S.Rao who subsequently, sold the land in favour of one Mrs. Helen Moreau in the year 1969. The - 5 - NC: 2024:KHC:51015-DB WA No. 879 of 2023 purchaser-Helen Moreau sold the land in favour of respondent No.3 herein in the year 1986.

3.1 Invoking the provision of Section 4 read with Section 5 of the Act, application came to be filed by the petitioner seeking to restoration of the land on the ground that there was a breach of Section 4 in transferring the land by way of sale and praying that the land should be restored and reinstated in favour of the petitioner, who is the legal heir of the original grantee.

3.2 Learned Single Judge relied on the decision of the Supreme Court in Nekkanti Rama Lakshmi Vs. State of Karnataka, [(2020) 14 SCC 232] to conclude that the initiation of proceedings by the appellant-petitioner after 39 years of inordinate delay would disentitle him to relief and that the application could not be considered.

3.3 While dismissing the petition and upholding the order of the Special Deputy Commissioner, learned Single Judge observed in paragraph 6 as under, "In the instant case, diligence is woefully lacking. Therefore, I am of the view that respondent No.2- Assistant Commissioner erred petition when the claim was admittedly found to be a in entertaining - 6 - NC: 2024:KHC:51015-DB WA No. 879 of 2023 stale claim. The Deputy Commissioner has rightly taken cognizance of inordinate delay and has allowed the appeal. The order under challenge is in accordance with law and also strictly in consonance with the law laid down by the Hon'ble Apex Court in the case of Nekkanti Rama Lakshmi (supra)."

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 - 7 - NC: 2024:KHC:51015-DB WA No. 879 of 2023 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 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 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. - 8 - NC: 2024:KHC:51015-DB WA No. 879 of 2023 (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. the orders of (2) Subject 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 provisions of sub-section (1) of Section 4." is null and void under

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. - 9 - NC: 2024:KHC:51015-DB WA No. 879 of 2023

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 to make an interested person 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 suo motu, must be taken within a reasonable time.’’ (para 8)

4.3.2 It was further stated, the present application “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 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 - 10 - NC: 2024:KHC:51015-DB WA No. 879 of 2023 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 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 - 11 - NC: 2024:KHC:51015-DB WA No. 879 of 2023 is pending before the learned Single Judge of this Court. This judgment does not touch anything on merit 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 in Nekkanti Rama Lakshmi (supra), vis-à-vis 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 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 - 12 - NC: 2024:KHC:51015-DB WA No. 879 of 2023 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 it did after considering all aspects of the matter including the sense of equity & justice. If the Legislature 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." to silence intended

4.7 From the decision of the Supreme Court in Union of India vs. N. Murugesan [(2022) 2 SCC 25], the division bench highlighted - 13 - NC: 2024:KHC:51015-DB WA No. 879 of 2023 the nice distinction between ‘delay and latches’, 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 latches’ 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 latches, 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 latches.

5. The Supreme Court in N. Murugesan (supra), explained the word ‘laches’ thus, language meaning "The word "laches" is derived from the “remissness and French 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 - 14 - NC: 2024:KHC:51015-DB WA No. 879 of 2023 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 latches, "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 the court. Thus, a man challenge before 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 latches has the facet in equity. Delay is the genus to which the latches and acquiescence are species. The jurisprudential concepts of delay, latches and acquiescence have their own colour and connotation and conceptually often different from crossing the - 15 - NC: 2024:KHC:51015-DB WA No. 879 of 2023 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 39 years. The question of latches 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 present appeal is dismissed. - 16 - NC: 2024:KHC:51015-DB WA No. 879 of 2023 In view of dismissal of the appeal, interlocutory application, as may be pending, would not survive and it stands accordingly disposed of. Sd/- (N. V. ANJARIA) CHIEF JUSTICE Sd/- (K. V. ARAVIND) JUDGE KPS, List No.: 1