SRI B SANJEEVAIAH v. THE STATE OF KARNATAKA

4. SMT. ERAMMA AGED ABOUT 70 YEARS, WIFE OF LATE OBALESH,

5. SRI SANNA PAPAIAH AGED ABOUT 45 YEARS, SON OF LATE OBALESH,

6. SMT. NAGARATHNAMMA AGED ABOUT 43 YEARS, DAUGHTER OF LATE OBALESH,

7. SRI T O SRINIVAS AGED ABOUT 41 YEARS, SON OF LATE OBALESH,

8. SMT. T O KAVYA AGED ABOUT 39 YEARS, DAUGHTER OF LATE OBALESH, RESPONDENT NO.4 TO 8 ARE R/OF PARASHURAMPURA VILLAGE, - 3 - NC: 2024:KHC:51679-DB WA No. 1346 of 2023 PARASHURAMAPURA HOBLI, CHALLAKERE TALUK, CHITRADURGA DISTRICT-577528.

9. SMT. K PARVATHAMMA AGED ABOUT 58 YEARS, WIFE OF SRI J O CHENNAKESHAVA, RESIDENT OF BEHIND POLICE STATION, PARASHURAMPURA TOWN, PARASHURAMAPURA, CHALLAKERE TALUK, CHITRADURGA DISTRICT -577528. (BY SRI. V SHIVAREDDY, AGA FOR R1 TO R3) …RESPONDENTS THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ISSUE A WRIT OF CERTIORARI ORDER OR DIRECTION OR WRIT OF LIKE NATURE QUASHING THE ORDER DATED 05.06.2023 MADE IN WRIT PETITION NO.146/2017 (SC-ST) ON THE FILE OF THE LEARNED SINGLE JUDGE OF THE HON’BLE HIGH COURT OF KARNATAKA AT BENGALURU AND RESTORE THE SAID WP TO FILE FOR BEING DISPOSED OF AFRESH IN ACCORDANCE OF LAW. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.G.PANDIT AND HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR ORAL JUDGMENT (PER: HON'BLE MR JUSTICE S.G.PANDIT) Since even after granting six adjournments for compliance of office objections, office objections are not complied with. Hence, though the matter is listed for orders regarding compliance of office objections, with the - 4 - NC: 2024:KHC:51679-DB WA No. 1346 of 2023 consent of learned counsel appearing for the parties, appeal is taken up for final disposal.

2. Appellants, LRs of original grantee are in appeal under Section 4 of the Karnataka High Court Act, 1961 questioning the correctness and legality of order dated

05.06.2023 in W.P.No.146/2017 passed by the learned Single Judge, allowing the writ petition of respondent No.9, quashing the Deputy Commissioner’s order dated

19.11.2016, whereunder of Assistant Commissioner for restoration of subject land was set aside.

3. Heard the learned counsel Sri.Y.Nagaraj for Sri.C.Shankar Reddy, learned counsel for appellants and learned Additional Government Advocate Sri.V.Shivareddy for respondent Nos.1 to 3. Perused the entire writ appeal papers.

4. Brief facts of the case are that, original grantee Sri.Pedda Bheemaiah was granted land on 08.06.1967 - 5 - NC: 2024:KHC:51679-DB WA No. 1346 of 2023 with non-alienation clause of 15 years. But, the original grantee sold the land in question under registered sale deed dated 15.01.1971 to the father of respondent Nos.3 and 4. The father of respondent Nos.3 and 4 in turn sold the land in question under registered sale deed dated

13.10.2010 to the respondent No.9. In the meanwhile, LRs of original grantee initiated proceedings under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, ‘PTCL Act’) praying to restore the land in question on 07.09.1993, which application was rejected by the respondent No.3 – Assistant Commissioner by order dated

22.07.1994. Against which, appellants were before the second respondent – Deputy Commissioner. The Deputy Commissioner by order dated 09.11.2016 allowed the appeal, set aside the order of the Assistant Commissioner and allowed the restoration application. Questioning the said order, respondent No.9 filed W.P.No.146/2017. Learned Single Judge allowed the writ petition by order dated 05.06.2023 solely on the ground of 21 years delay - 6 - NC: 2024:KHC:51679-DB WA No. 1346 of 2023 in initiating the restoration proceedings. Questioning the same, respondents before the learned Single Judge are in appeal.

5. Learned counsel for the appellants mainly contends that the learned Single Judge could not have allowed the writ petition filed by respondent No.9, solely on the ground of delay and laches on the part of the LRs of the original grantee. Learned counsel placing reliance on the amended provisions of Section 5 of the PTCL Act, would submit that the State Government got amended the said provisions stating that there is no limitation for filing the restoration application. Learned counsel would submit that leaned Single Judge failed to take into consideration the said amendment and without considering the said contention, it is submitted that learned Single Judge allowed the writ petition. Thus, he prays for allowing the writ appeal.

6. Having heard the learned counsel appearing for the parties and on perusal of the entire writ appeal papers, - 7 - NC: 2024:KHC:51679-DB WA No. 1346 of 2023 we are of the view that appellants have not made out any ground to interfere with the impugned order passed by the learned Single Judge.

7. Admittedly, the grant was made on 08.06.1967 and the first sale is dated 15.01.1971, which was during non-alienation period under a registered sale deed. Admittedly, proceedings for restoration is initiated on

07.09.1993, after 21 years from the date of first sale. There is no explanation by the appellants herein for the said delay in initiating the proceedings for restoration.

8. The contention that in view of the amendment brought to the provisions of PTCL Act to state that there would be no limitation to initiate restoration proceedings was considered by a Co-ordinate Bench of this Court in the case of SMT. GOURAMMA @ GANGAMMA VS. THE DEPUTY COMMISSIONER, HAVERI AND OTHERS1 and 1 W.A.No.100101/2024 dated 29.07.2024 - 8 - NC: 2024:KHC:51679-DB WA No. 1346 of 2023 the Co-ordinate Bench of this Court at paragraph 3 (a) to (h) of the said judgment has held as follows: “3 (a) The subject land does not answer the definition of ‘granted land’ in terms of Section 2(b) of the 1978 Act cannot be much disputed, inasmuch as the grant was not on account of social status of the grantee. The said grant was originally made in 1930 and later in

1958. The sale of this land happened vide registered Sale Deed dated 05.12.1972. The buyer, in turn, sold a part of the land to one Mr.Mahadevappa vide registered Sale Deed dated 16.04.1976. Admittedly, the resumption application filed earlier was rejected vide order dated 30.12.2002 and appeal against the same also came to be turned down vide order

27.08.2004. Even prior to this, there were resumption orders that were set aside by a learned Single Judge in W.P.No.2608/2000 vide order dated 22.11.2000, remitting the matter back for fresh consideration. That is how the subsequent application came to be moved; that was rejected vide order dated 30.12.2002. Even appeal met the same fate vide order

23.12.2003. - 9 - NC: 2024:KHC:51679-DB WA No. 1346 of 2023 (b) When above was the state of things as per record, it is ununderstandable as to how persons claiming under the original grantee could move another application afresh on

27.08.2004. The Assistant Commissioner could not have allowed the said application vide order dated 22.11.2004. It sounds strange that even the Deputy Commissioner dismissed the appeal against the same vide order dated 17.03.2011. The records reveal that the first alienation took place vide Sale Deed dated 05.12.1972 and the subject application for resumption was filed on

27.08.2004. In the meanwhile, the Re-grant of the land was obtained since it was a “hereditary land” falling within the precincts of Karnataka Village Offices Abolition Act, 1961. Apparently, there is a time gap of about thirty- two years spanning between alienation and the filing of resumption application. There absolutely no explanation whatsoever for the laches that militate on record and against justice. Thus, the case squarely fits into the Apex Court decision in Nekkanti Rama Lakshmi vs State Of Karnataka (2020) 14 SCC 232), that tardy and belated claims should - 10 - NC: 2024:KHC:51679-DB WA No. 1346 of 2023 not be favoured. This reasoning has animated the impugned judgment, rightly and therefore, the same cannot be faltered. (c) The vehement submission of learned counsel for the appellant that Act 30 of 2023 has amended the provisions of Section 5 of the 1978 Act by adding clauses (c) & (d) to sub- section (1) of the said Section and therefore, the concept of “limitation and delay” has to remain miles away. These new clauses read as under: “(c) anything notwithstanding conained 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.” It hardly needs to be stated that at no point of time, the 1978 Act prescribed any period of limitation for moving application for the resumption of granted land after it is alienated. (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 - 11 - NC: 2024:KHC:51679-DB WA No. 1346 of 2023 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. (e) Nekkanti supra does not speak of “limitation period” at all. What it discusses is, the long lapse of time between alienation of granted land and the filing of claim for its resumption. Observations occurring in para 8 of the decision lend support to this view: “8. 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 the case of Chhedi Lal Yadav & Ors. vs. Hari Kishore Yadav (D) - 12 - NC: 2024:KHC:51679-DB WA No. 1346 of 2023 Thr. Lrs. & Ors., 2017(6) SCALE 459 and also in the case of Ningappa vs. Dy. Commissioner & Ors. (C.A.No. 3131 of 2007, decided on 14.07.2011) reiterated a settled position in law that whether Statute provided limitation, for a period of 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. This relief was granted to the farmers due to flood in the Kosi River which make agricultural operations impossible. 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, Karnataka High Court, namely, R. Rudrappa vs. Deputy Commissioner, 2000 (1) 523, Law Maddurappa vs. State of Karnataka, 2006 (4) Karnataka Law Journal, 303 and Deputy G.Maregouda Commissioner, 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. …..” vs. The Chitradurga judgments Karnataka Journal, (Emphasis is ours) - 13 - NC: 2024:KHC:51679-DB WA No. 1346 of 2023 Apparently, the law declared by the Apex Court in the above case has not been altered by the subject amendment, even in the least. (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 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. (g) There is a marked difference between ‘delay & laches’ that operate in equity and - 14 - NC: 2024:KHC:51679-DB WA No. 1346 of 2023 ‘limitation & delay’ that obtain in law. The following observations of the Apex Court in Union of India Vs. N.Murugesan ((2022) 2 SCC 25 at para 20, 21 & 22) make out this point: "Delay, laches and acquiescence

20. The principles governing delay, laches, and acquiescence are overlapping and interconnected on many occasions. However, distinct characters and distinct elements. One can say that delay is the genus to which laches and acquiescence are species. Similarly, laches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, but not laches. These principles are common law principles, and perhaps one could identify that these principles find place in various statutes which restrict the create limitation period nonconsideration of condonation in certain circumstances.… The underlying principle governing these concepts would be one of estoppel. The question of prejudice is also an important issue to be taken note of by the court. Laches.

21. The word “laches” is derived from the French language meaning “remissness involves unreasonable delay or negligence pursuing a claim involving an equitable slackness”. It - 15 - NC: 2024:KHC:51679-DB WA No. 1346 of 2023 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.

22. 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.” (h) We are told at the Bar that the subject Amendment has been put in challenge in W.P.No.27496/2023 and that, matter pending consideration. We make it clear that construction of a statute is one thing and its validity is another. We do not want to say even a word about the validity, that is being examined by the learned Single Judge before whom the matter is pending. We have only - 16 - NC: 2024:KHC:51679-DB WA No. 1346 of 2023 placed our interpretation on the amended provisions of the Act and nothing beyond.”

9. In view of the above findings by the Co- ordinate Bench as well as principles laid down by the Hon'ble Apex Court in the case of NEKKANTI RAMA LAKSHMI VS STATE OF KARNATAKA2, we are of the view that there is no ground to interfere with the learned Single Judge’s order. Accordingly, writ appeal stands rejected. In view of the above, I.A.Nos.1/2023 to 3/2023 stand disposed of. Sd/- (S.G.PANDIT) JUDGE Sd/- (RAMACHANDRA D. HUDDAR) JUDGE NC CT:bms List No.: 1 Sl No.: 9 2 (2020) 14 SCC 232)