SRI.S.M JAYANNA v. THE DEPUTY COMMISSIONER

Digitally signed by AMBIKA H B Location: High Court of Karnataka …APPELLANT …RESPONDENTS (SRI K.S. HARISH, GOVERNMENT ADVOCATE FOR RESPONDENT NOS.1 AND 2) - 2 - NC: 2024:KHC:53365-DB WA No. 1225 of 2023 THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE IN WP ORDER OF THE LEARNED SINGLE JUDGE MADE NO.3292/2022 DATED 25/07/2023 AND DISMISS THE WRIT PETITION. THIS APPEAL, COMING ON FOR PELIMINARY HEARING, 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. P.N. Nanja Reddy for the appellant and learned Additional Government Advocate Mr. K.S. Harish for respondent Nos.1 and 2.

2. The appellant herein is the original respondent No.3 in the writ petition who is the heir of the original grantee of the land in question which is described as Survey No.60 (Old No.60/P1) admeasuring 3 Acres situated at Sangondanahalli Village, Avani Hobli, Mulabagil Taluka, Kolar District.

2.1 The present appeal is directed against judgment and order dated 25.07.2023 whereby, learned Single Judge has allowed the - 3 - NC: 2024:KHC:53365-DB WA No. 1225 of 2023 petition by setting aside the order passed by the Deputy Commissioner confirming the order of the Assistant Commissioner whereby, the land described as Survey No.60 (Old No.60/P1) admeasuring 3 Acres situated at Sangondanahalli Village, Avani Hobli, Mulabagil Taluka, Kolar District was directed to be restored to the appellant herein under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as "the Act"). Learned Single Judge set aside the orders passed by the Assistant Commissioner and the Deputy Commissioner.

3. Learned Single Judge highlighted the factual aspect that the land in question was not falling within the definition of "granted land". Therefore, the provisions of the aforesaid Act of 1978 would not apply. It was recorded in paragraph 4 of the order that the Grant Certificate issued in Form No.1 is a title document and that the Assistant Commissioner acted without jurisdiction to entertain the application of the heir of the grantee under the provisions of the Act. The order of resumption, it was held by learned Single Judge, was without jurisdiction and was non est in law. It was rightly - 4 - NC: 2024:KHC:53365-DB WA No. 1225 of 2023 observed that on the said count only the application was liable to be rejected.

3.1 Equally weighty aspect recorded by learned Single Judge was that the application seeking resumption of land was filed by respondent No.3-appellant herein after inordinate delay of 18 years. The decision of the Supreme Court in Nekkanti Rama Lakshmi Vs. State of Karnataka and another [(2020) 14 SCC 232], was relied on by learned Single Judge to conclude that since the resumption was not sought within reasonable period, the authorities were not justified in passing the orders in favour of the heir of the grantee. This issue is also dealt with and answered by this Court in Smt. Poojari Gangamma Vs. Sri Sadashiva Reddy, which was Writ Appeal No.1141 of 2023 decided by this Court as per judgment dated 12.12.2024.

3.2 Paragraphs 3.5 to 6 recorded in the said decision in Smt. Poojari Gangamma (supra) would apply in the present case as well to become part of the reasoning of this order. They are extracted herein, "3.5 The proposition of law that once the grantee of the land has filed the application for restoration - 5 - NC: 2024:KHC:53365-DB WA No. 1225 of 2023 and restitution under Section 4 read with section 5 of the Act after inordinate delay, the application could not be entertained. It is well settled by the reasoning of the decision of Nekkanti (supra) as well as the further decisions including the decision of this Bench in Smt. M. Manjula Vs. The Deputy Commissioner, Bengaluru, which was Writ Appeal No.210 of 2023. In the said decision of Smt. M. Manjula (supra), this Bench discussed the principles in light of the development of law including the amendment under Section 5 of the Act. to provide lands, in any The legal provisions and development of law 4. 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 that notwithstanding anything 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- - 6 - NC: 2024:KHC:53365-DB WA No. 1225 of 2023 (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 Assistant Commissioner is satisfied that the transfer of any granted land is null and void under Sub- section (1) of Section 4, he may,- necessary, (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 the person affected a except after giving 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 form all vested encumbrances. The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes accordance with the rules relating to grant of land. the Government (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 the Assistant taken by Commissioner in pursuance of any power conferred by or under this Act. to be - 7 - NC: 2024:KHC:53365-DB WA No. 1225 of 2023 (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 It would be noticed

4.3 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 limitation, provisions of the statute must be invoked within a reasonable time. It is held that action whether for a period of - 8 - NC: 2024:KHC:53365-DB WA No. 1225 of 2023 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 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. - 9 - NC: 2024:KHC:53365-DB WA No. 1225 of 2023 (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.

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 period now too. Laches, which would - 10 - NC: 2024:KHC:53365-DB WA No. 1225 of 2023 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 legislative true, 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 law, the period of 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." limitation prescribed by the division bench highlighted

4.7 From the decision of the Supreme Court in Union of India vs. N. Murugesan [(2022) 2 SCC 25], the nice distinction between ‘delay and latches’, as against ‘limitation’. It was observed that the ‘limitation’ is a taking an action as prescription of contemplated by concept of ‘delay and latches’ has a different connotation to operate. legislature, whereas - 11 - NC: 2024:KHC:53365-DB WA No. 1225 of 2023 touching

4.8 The coordinate bench of this Court in Smt. Gouramma (supra), proceeded on the above reasoning to clarify that the issues were examined the aspects of validity of without 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. The Supreme Court

5. (supra), explained the word ‘laches’ thus, in N. Murugesan "The word "laches" is derived from the language meaning “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 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. - 12 - NC: 2024:KHC:53365-DB WA No. 1225 of 2023 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 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 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 commencing the action in law. to pass by in allowing

6. In the above view, when learned Single Judge has allowed the petition at the instance of the purchaser on the ground that restoration of the land in favour of the original grantee was permitted by the authorities after gap of 30 years which was not permissible in law, no error could be booked in the judgment and order of learned Single Judge."

4. There is no substance in the challenge to the judgment and order of learned Single Judge from any standpoint.

5. The appeal is meritless. The same is hereby dismissed. - 13 - NC: 2024:KHC:53365-DB WA No. 1225 of 2023 In view of disposal 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 AHB List No.: 2 Sl No.: 3