Karnataka High Court
Sri Shivaiah vs The State Of Karnataka on 18 December, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER 2024
PRESENT
THE HON'BLE MR. JUSTICE S. G. PANDIT
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D.HUDDAR
WRIT APPEAL NO.204 OF 2023 (SC-ST)
BETWEEN:
SRI SHIVAIAH
S/O LATE ANTHURAIAH
AGED ABOUT 66 YEARS
R/O MARASHETTIHALLI VILLAGE
KASABA HOBLI, GUBBI TALUK
TUMKURU-571112.
... APPELLANT
(BY MISS. SWETHA G DESHPANDE, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
REVENUE DEPARTMENT
M.S. BUILDING
BANGALORE-01.
2. THE DEPUTY COMMISSIONER
TUMKURU DISTRICT
TUMKURU-571112.
3. THE ASSISTANT COMMISSIONER
TUMKURU SUB-DIVISION
TUMKURU-571112.
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4. THE TAHASILDAR
GUBBI TALUK
TUMKURU DISTRICT-572216.
5. R.S.SHAMBHULINGAIAH
S/O SHANKARAPPA
AGED ABOUT 66 YEARS
R/AT D. RAMPURA VILLAGE
KASABA HOBLI, GUBBI TALUK
TUMKURU DISTRICT-574221.
6. VIMALA
W/O LATE R.S. BOJANNA
AGED ABOUT 51 YEARS
7. MADHUSHANKAR R.B.
S/O LATE R.S. BOJANNA
AGED ABOUT 33 YEARS
BOTH RESPONDENTS 6 AND 7 ARE
R/AT D RAMPURA VILLAGE
KADABA HOBLI, GUBBI TALUK
TUMKURU DISTRICT-574221.
...RESPONDENTS
(BY SRI. V SHIVAREDDY, AGA R1-R4
SRI PRADEEP KUMAR R.H., ADV. FOR R5
SRI KIRAN KUMAR H., ADV. FOR R6 & R7)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER DATED 20.09.2022 PASSED BY THE
LEARNED SINGLE JUDGE IN W.P.NO.8209/2022 AND THE
SAID WRIT PETITION BE DISMISSED WHILE ALLOWING
THE PRESENT WRIT APPEAL OR B) REMAND THE WRIT
PETITION BEFORE THE LEARNED SINGLE JUDGE FOR
CONSIDERING THE MATTER AFRESH AND ETC.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 03/12/2024 COMING ON THIS DAY,
S.G.PANDIT J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
and
HON'BLE MR JUSTICE RAMACHANDRA D.HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE S.G.PANDIT) The legal representative of grantee is in appeal under Section 4 of the Karnataka High Court Act, 1961, questioning the order dated 20.09.2022 in W.P.No.8209/2022 passed by the learned Single Judge allowing the writ petition of respondent No.5, questioning the order of restoration passed by the 3rd respondent confirmed by the 2nd respondent by orders dated 12.11.2010 and 18.07.2015 respectively.
2. The parties would be referred to as they stood before the writ Court. The appellant herein was respondent No.5 and respondent No.5 herein was the petitioner before the writ Court.
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3. The brief facts of the case are that:
It is the case of respondent No.5 that the land in question i.e., land bearing Sy.No.140, measuring 4 acres situated at Marashettyhalli Village, Kasaba Hobli, Gubbi Taluk, Tumkur District was granted to the father of respondent No.5 Late Anthuraiah on 18.08.1972. In pursuance of grant, Saguvali Chit was issued on 05.10.1982. The father of respondent No.5 sold the land in question in favour of the petitioner under registered sale deed dated 31.05.1993.
Thereafter, it is stated that partition has taken place in the family of respondent No.5 on 06.09.2003 and in the said partition, the land in question has fallen to the share of one Sri.R.S.Bojanna, brother of the petitioner, wife of 6th respondent and father of 7th respondent. That, on 09.12.2004, an application for restoration under Sections 4 and 5 of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of 5 Transfer of Certain Lands) Act, 1978 (for short "PTCL Act") was filed by 5th respondent. The third respondent-Assistant Commissioner, by order dated 12.11.2010 (Annexure-B) allowed the said restoration application and directed restoration of land in question to respondent No.5. Aggrieved by the said order, the petitioner filed an appeal before the 2nd respondent - Deputy Commissioner. The Deputy Commissioner by order dated 18.07.2014 dismissed the appeal. Challenging the said order of the Deputy Commissioner as well as Assistant Commissioner, the petitioner was before this Court in W.P.No.8209/2022. Learned Single Judge on hearing the parties, under impugned order dated 20.09.2022 allowed the writ petition, setting aside the order of restoration dated 12.11.2010 passed by the Assistant Commissioner and also the order of Deputy Commissioner dated 18.07.2014 confirming restoration on the ground that 6 there was delay of 12 years in filing restoration application and also on the ground that the provisions of PTCL Act are not applicable to the subject land which was granted in an auction for an upset price. Aggrieved by the order of the learned Single Judge, respondent No.5 is in appeal.
4. Heard learned counsel Ms.Swetha G Deshpande for appellant, Sri.Shivareddy, learned Additional Government Advocate for respondent Nos.1 to 4; Sri.Pradeep Kumar, learned counsel for respondent No.5 and Sri.Kiran Kumar H.S., learned counsel for respondent Nos.6 and 7. Perused the writ appeal papers.
5. Learned counsel for the appellant/respondent No.5 before the learned Single Judge, contends that learned Single Judge committed an error in entertaining the writ petition which was filed after 12 7 years from the date of order of the Assistant Commissioner and more than 8 years after the order passed by the Deputy Commissioner, confirming the order passed by the Assistant Commissioner. The delay in approaching the Writ court is not explained. As there is inordinate delay, learned Single Judge could not have entertained the writ petition. Learned counsel in that regard places reliance on the decision of the Hon'ble Apex Court in Civil Appeal No.5027/2024 decided on 18.04.2024.
6. Learned Single Judge has come to the conclusion that the writ petition though filed after delay of 12 years cannot be dismissed on the ground of delay and latches, since the provisions of PTCL Act are not applicable to the subject land which was granted in an auction for an upset price. Furthermore, it is to be seen that restoration application is filed on 09.12.2004, subsequent to the partition in the family 8 of petitioner that took place during 2003. But respondent No.5 i.e. appellant herein has not made either brother of the petitioner Sri.R.S.Bojanna or his successors i.e., respondent Nos.6 and 7 (to whose share the subject land has fallen in the family partition) as party to the proceedings either before the Assistant Commissioner or before the Deputy Commissioner. The restoration application was filed making only the petitioner as party/respondent. Since the sale by father of the appellant/respondent No.5 was in favour of the petitioner and being brother of Sri.Bhojanna, 5th respondent filed writ petition in the year 2022. Further, it is to be noticed that respondent Nos.6 and 7 had filed a suit in O.S.No.299/2010 before the Civil Judge, Gubbi for declaration that they are the absolute owners in possession and enjoyment of the suit schedule property and for consequential permanent injunction. In the said suit, the 5th 9 respondent-appellant herein had entered into compromise, agreeing to decree the suit. It is stated that when the Tahsildar of Gubbi Taluk issued notice dated 24.01.2022, the petitioner rushed to this Court to challenge restoration order as well as the order of Deputy Commissioner. In the above circumstances, it cannot be said that there is delay on the part of the petitioner.
7. Learned counsel for the appellant places reliance on the decision in Civil Appeal No.5027/2024 (MRINMOY MAITY v/s CHHANDA KOLEY AND OTHERS) wherein the Honb'le Supreme Court has held that while exercising discretionary jurisdiction under Article 226 of the Constitution of India, the High Court will have to necessarily take into consideration the delay and latches on the part of the applicant in approaching a writ Court. In the instant case, taking note of the fact that provisions of PTCL Act would not 10 apply to the transaction, learned Single Judge has observed that the writ petition cannot be dismissed solely on the ground of delay and latches, which according to us is a valid reason, in addition to the observation made by us above.
8. Learned counsel for the appellant further contends that the petitioner has no locus-standi to challenge the impugned order of restoration by the Assistant Commissioner, confirmed by the Deputy Commissioner, since in the partition in the family of petitioner that took place on 06.09.2003, the land in question has fallen to the share of one Sri.R.S.Bhojanna, brother of petitioner and husband of respondent No.6. It is submitted that, when respondent Nos.6 and 7 who succeeded Bhojanna have not questioned the impugned order of restoration, the petitioner, being brother of 11 R.S.Bhojanna has no locus-standi to challenge the order of restoration.
9. In the writ petition, the petitioner has stated that respondent Nos.6 and 7 are wife and son of petitioner's brother late R.S.Bhojanna and in the family partition, the subject land has fallen to the share of his brother Sri.Bhojanna, where a residential house is constructed and they are residing there. Admittedly, restoration application filed subsequent to partition, without making Bhojanna or his successors as party to the proceedings, but the petitioner who was the brother of Bhojanna was made party before the Assistant Commissioner and before the Deputy Commissioner, in whose favour, father of respondent No.5 had executed registered sale deed on 31.05.1993. When the petitioner is the purchaser and when he is a party before respondent Nos.2 and 3, he has locus-standi to question the order of restoration 12 dated 12.11.2010 as well as the order of Deputy Commissioner dated 18.07.2014, confirming restoration of the subject land.
10. Learned counsel for the appellant next contended that learned Single Judge is not justified in observing that the provisions of PTCL Act would have no application since the land is granted in public auction for an upset price. Learned counsel for the appellant would submit that the land is granted under the Karnataka Land Grant Rules, 1969 which was in existence as on the date of grant with non-alienation clause for a period of 15 years. When the land is granted with non-alienation clause to a person belonging to Scheduled Caste or Scheduled Tribe, provisions of PTCL Act would be attracted. Further, learned counsel would submit that the Court should always look into the contents of the documents and thereafter shall come to the conclusion as to whether 13 it is a granted land or purchased on payment of upset price.
11. To examine the above said contention, we have gone through the Grant Certificate which is placed on record as Annexure-C. The Grant Certificate clearly indicates that father of the petitioner Anthuraiah participated in a publication auction and purchased the land in question in the auction by paying upset price of Rs.115/-. When the Grant Certificate itself indicates that the land is purchased in a public auction for upset price, we cannot find fault with the finding of the learned Single Judge that provisions of PTCL Act are not applicable, since the land in question granted in an auction for upset price.
12. The Hon'ble Apex Court in B.K.MUNIRAJU v/s STATE OF KARNATAKA AND OTHERS reported in (2008) 4 SCC 451 while considering the provisions 14 of Section 4 and 5 of PTCL Act has observed that to know the real nature of document, one has to look into recitals of the document and not title of the document. This observation was with reference to a particular incident whether the land in question was granted land or land purchased for a price at a public auction. Relevant paragraphs 17 and 18 read as follows:
"17. From the materials, now we have to see whether the land purchased by Motappa was a "granted land" as claimed by the appellant herein and one M. Gopal or purchased by public auction for a price as claimed by contesting Respondents 4 and 5 herein? In order to understand whether the land in question was a "granted land" or "land purchased for a price at a public auction", it is incumbent on the part of the authorities to look into the relevant records and decide the same. In view of the controversy in question, we verified the document and the orders passed by the Assistant Commissioner and the Deputy Commissioner and the factual findings recorded by them. It reveals that the 15 land in question was granted in 1948 and the Certificate of grant/Saguvali chit which was filed as Annexure R-1 before the High Court (Annexure P-3 before us) shows that the same was sold in public auction for a price. In other words, the land was purchased by Motappa at a public auction and it was not a "granted land"
within the meaning of Rule 43(8) of the Rules. It was contended that the finding recorded by both the authorities is essentially a factual finding based on the relevant materials and the same cannot be interfered with by the writ court.
18. The document in question which is filed as Annexure P-3, has been styled or titled as "certificate of grant". In order to know the real nature of the document, one has to look into the recitals of the document and not the title of the document. The intention is to be gathered from the recitals in the deed, the conduct of the parties and the evidence on record. It is settled law that the question of construction of a document is to be decided by finding out the intention of the executant, firstly, from a comprehensive reading of the terms of the document itself, and then, by looking into - 16
to the extent permissible - the prevailing circumstances which persuaded the author of the document to execute it. With a view to ascertain the nature of a transaction, the document has to be read as a whole. A sentence or term used may not be determinative of the real nature of transaction. Reference in this regard can be made to the following cases i.e. Vidhyadhar v. Manikrao, Subbegowda v. Thimmegowda and Bishwanath Prasad Singh v. Rajendra Prasad."
13. Lastly, learned counsel for the appellant contended that the learned Single Judge could not have dismissed the writ petition solely on the ground of delay and latches in approaching the authorities, by filing an application for restoration under Sections 4 and 5 of PTCL Act. Learned counsel would draw our attention to the amendment brought to PTCL Act by Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) (Amendment) Act, 2023 to state that there shall be no 17 limitation of time to invoke provisions of PTCL Act. It is pertinent to note that no limitation was prescribed for filing restoration application under PTCL Act and it is only that, one has to explain the delay in approaching the authorities. A co-ordinate Bench of this Court had an occasion to consider the amendment in W.A.No.100101/2024 in the case of SMT. GOURAMMA @ GANGAMMA VS. THE DEPUTY COMMISSIONER, HAVERI AND OTHERS and at paragraph 3(a) to 3(h) 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 16.04.1976.18
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.
(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 19 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 the 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 is 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 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 20 Section and therefore, the concept of "limitation and delay" has to remain miles away. These new clauses read as under:
"(c) notwithstanding anything 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 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 21 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) 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 for a period of 22 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. 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, the judgments of the Karnataka High Court, namely, R. Rudrappa vs. Deputy Commissioner, 2000 (1) Karnataka Law Journal, 523, Maddurappa vs. State of Karnataka, 2006 (4) 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. ....."
(Emphasis is ours) Apparently, the law declared by the Apex Court in the above case has not been 23 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 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.
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(g) There is a marked difference between 'delay & laches' that operate in equity and '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, they have their 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 period of limitation and create 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.25
21. 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 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 is pending consideration. We make it 26 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 placed our interpretation on the amended provisions of the Act and nothing beyond."
14. In the light of the above discussion, we are of the view that there is no merit in the writ appeal and accordingly, the appeal stands rejected.
Sd/-
(S.G.PANDIT) JUDGE Sd/-
(RAMACHANDRA D.HUDDAR) JUDGE MPK CT: bms