OF KARNATAKA AT BENGALURU DATED THIS THE 10 TH DAY OF DECEMBER v. ANJARIA

(BY SRI PRADEEP M., ADVOCATE) AND:

THE STATE OF KARNATAKA REVENUE DEPARTMENT, M. S. BUILDING, BENGALURU - 560 001. THE DEPUTY COMMISSIONER BENGALURU URBAN DISTRICT, BENGALURU - 560 009. THE ASSISTANT COMMISSIONER BENGALURU NORTH SUB-DIVISION, KANDAYA BHAVANA 2ND FLOOR, BENGALURU - 560 009.

SRI K. T. JOSE S/O. K. L. THOMAS, AGED ABOUT 59 YEARS, R/AT No.102, 1ST CROSS, 4TH MAIN, HAL 3RD STAGE, INDIRANAGAR, BENGALURU - 560 075.

SRI MOHAMMED MASOOD S/O. MUSTAK AHMED, AGED ABOUT 37 YEARS R/AT BENGALURU VILLAGE, JALA HOBLI, BENGALURU NORTH (ADDL) TALUK, BENGALURU DISTRICT - 562 149. - 3 - NC: 2024:KHC:51104-DB WA No. 1089 of 2023

SRI CHANDRASHEKAR S/O. LATE KRISHNAPPA, AGED ABOUT 55 YEARS, R/AT No.684, GOWRAMMA NILAYA, 1ST MAIN SAMPANGRAMAIAH LAYOUT, KADUGONDANAHALLI, BENGALURU - 560 045. …RESPONDENTS (BY SRI K.S. HARISH, GOVERNMENT ADVOCATE FOR R1-R3 R6 - SERVED) THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET-ASIDE THE ORDERS PASSED BY THE LEARNED SINGLE JUDGE IN WP NO.4434/2023 DATED 31/05/2023 AND PASS SUCH OTHER ORDERS. 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 - 4 - NC: 2024:KHC:51104-DB WA No. 1089 of 2023 ORAL JUDGMENT (PER: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N. V. ANJARIA) Heard learned advocate Mr. M. Pradeep for the appellants and learned Government Advocate Mr. K.S. Harish for the respondents-State and its authorities.

The present appeal is preferred by the original petitioners, under Section 4 of the Karnataka High Court Act, 1961, is directed against the judgment and order dated 31.05.2023 whereby, Writ Petition No.4434 of 2023 came to be dismissed.

2.1 The challenge in the writ petition was against the order dated

21.02.2022 passed by respondent No.2-the Deputy Commissioner whereby, the Deputy Commissioner allowed the application filed by respondent No.4 and set aside the order dated 13.05.2008 passed by respondent No.3-the Assistant Commissioner.

3. The facts in the background are that the land bearing Sy.No.176/58 admeasuring 30 Guntas situated at Bagaluru Village, Jala Hobli, Bengaluru North Additional Taluka was granted to the father of the petitioners by the order dated 23.09.1981. The said original grantee alienated the land during his lifetime in favour of - 5 - NC: 2024:KHC:51104-DB WA No. 1089 of 2023 respondent No.5 by the registered Sale Deed dated 19.05.1995 who, in turn, sold the land in favour of respondent No.6 on

31.03.2005. The land again changed the hand and came to be sold in favour of the present respondent No.4 under the registered Sale Deed dated 24.03.2006.

3.1 The father of the petitioners filed an application after about 12 years in the year 2007 under Section 4 read with Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, for restoration and restitution of the land on the ground that it was a granted land.

3.2 Learned Single Judge relied on the decision of the Hon'ble Supreme Court in Nekkanti Rama Lakshmi vs. State of Karnataka and another (2020 14 SCC 232) and other decisions to hold that there is an inordinate delay in initiating the action by the grantee and that, after the delay which was of 12 years, the application for restitution of the land could not have been accepted. The development of law in the subject was traced by this Court in decision in Smt. M. Manjula and others vs. The Deputy Commissioner and others, which was Writ Appeal No.210 of 2023. - 6 - NC: 2024:KHC:51104-DB WA No. 1089 of 2023

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. - 7 - NC: 2024:KHC:51104-DB WA No. 1089 of 2023

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. (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 Deputy (2) Subject Commissioner under Section 5-А, any order the orders of - 8 - NC: 2024:KHC:51104-DB WA No. 1089 of 2023 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:51104-DB WA No. 1089 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 and Ors, 2000(2) Kr. L.J.Sh. N.4B holding that - 10 - NC: 2024:KHC:51104-DB WA No. 1089 of 2023 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 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 - 11 - NC: 2024:KHC:51104-DB WA No. 1089 of 2023 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 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 limitation period earlier and there is no limitation - 12 - NC: 2024:KHC:51104-DB WA No. 1089 of 2023 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 the nice distinction between ‘delay and laches’, as against - 13 - NC: 2024:KHC:51104-DB WA No. 1089 of 2023 ‘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, language meaning "The word "laches" is derived from the French “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 - 14 - NC: 2024:KHC:51104-DB WA No. 1089 of 2023 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 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 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 - 15 - NC: 2024:KHC:51104-DB WA No. 1089 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 12 years. The question of laches would come into play. 12 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 For the aforesaid reasons, no case is made out to interfere with the judgment and order of learned Single Judge dismissing the petition filed by the heir of the grantee. - 16 - NC: 2024:KHC:51104-DB WA No. 1089 of 2023

The appeal is merit less and it is accordingly dismissed. In view of dismissal of the appeal, interlocutory applications, if any, would not survive and they stand accordingly disposed of. Sd/- (N. V. ANJARIA) CHIEF JUSTICE Sd/- (K. V. ARAVIND) JUDGE DDU/List No.: 2 Sl No.: 10