Karnataka High Court
Smt. Boramma vs The State Of Karnataka on 25 November, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2024:KHC:48182-DB
WA No. 1427 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
WRIT APPEAL NO. 1427 OF 2023 (SC-ST)
BETWEEN:
SMT. BORAMMA,
W/O LATE NARAYANAIAH,
AGED ABOUT 70 YEARS,
RESIDENT OF 418, 7TH CROSS,
GANDHINAGAR, MANDYA - 571401.
...APPELLANT
(BY SRI CHANDRAKANTH R GOULAY, ADVOCATE)
AND:
Digitally 1. THE STATE OF KARNATAKA,
signed by REP. BY ITS SECRETARY,
PRAMILA G V
DEPARTMENT OF REVENUE,
Location:
HIGH COURT M S BUILDINGS,
OF BENGALURU - 560001.
KARNATAKA
2. THE DEPUTY COMMISSIONER,
MANDYA DISTRICT,
MANDYA - 571401.
3. THE ASSISTANT COMMISSIONER
MANDYA DISTRICT,
MANDYA - 571401.
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NC: 2024:KHC:48182-DB
WA No. 1427 of 2023
4. SRI G L SHANKARE GOWDA,
S/O SRI LAKSHMEGOWDA, AGED MAJOR
RESIDING AT GUNANANAYAKANAHALLI
VILLAGE, DUDA HOBLI, MANDYA - 571405.
...RESPONDENTS
(BY SMT B SUKANYA BALIGA, AGA FOR R1 TO R3 [PH]
SRI SATISH K, ADV. FOR R4 [PH])
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO CALL FOR
RELEVANT RECORDS (a) SET ASIDE THE ORDER DATED
24.08.2023 MADE IN WP No.4365/2022 (SC-ST) PASSED BY
THE LEARNED SINGLE JUDGE AND ALLOW THE WRIT
PETITION IN ITS ENTIRETY WITH COSTS IN THE INTEREST
OF JUSTICE (b) ISSUE A DIRECTION TO THE 2ND
RESPONDENT TO RECONSIDER THE APPEAL FILED BY THE
APPELLANT UNDER SECTION 5A OF THE PTCL ACT
CONSEQUENTLY TO THE PRAYER 1 ABOVE (c) PASS ANY
OTHER ORDER AS DEEMED FIT AND PROPER BY THIS
HONBLE COURT CONSIDERING THE FACTS AND
CIRCUMSTANCES OF THE CASE, TO MEET THE ENDS OF
JUSTICE.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
and
HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
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NC: 2024:KHC:48182-DB
WA No. 1427 of 2023
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE S.G.PANDIT) The appellant-original grantee is in appeal aggrieved by the order dated 24.08.2023 in Writ Petition No.4365/2022 passed by the learned Single Judge rejecting the appellant's Writ Petition, wherein the appellant had challenged the dismissal of her appeal dated 30.06.2020.
2. Heard Sri.Chandrakanth R.Goulay, learned counsel appearing for the appellant, Smt.B.Sukanya Baliga, the learned Additional Government Advocate appearing for respondents No.1 to 3 and Sri.Satish K., the learned counsel appearing for respondent No.4. Perused the appeal papers.
3. Brief facts of the case are that the appellant- original grantee was granted land on 26.02.1965 with a non-alienation clause for a period of 10 years. The appellant sold the land in-question under registered sale deed 30.07.1985 in favour of respondent No.4, subsequent to coming into force of Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) -4- NC: 2024:KHC:48182-DB WA No. 1427 of 2023 Act, 1978 (for short 'PTCL Act'). The appellant submitted an application under Section 4(2) of the PTCL Act to respondent No.3 in the year 1990. Respondent No.3 by order dated 30.04.1991 dismissed the application of the appellant/ petitioner. The appellant/petitioner preferred an appeal before respondent No.2-Deputy Commissioner. Respondent No.2 by order dated 06.01.2014 allowed the appeal by setting aside the order of respondent No.3-Assistant Commissioner and ordered for restoration, against which respondent No.4 preferred Writ Petition No.12489/2014. The learned Single Judge by order dated 19.03.2014 dismissed the petition filed by respondent No.4 herein against which respondent No.4 preferred a Review Petition in RP No.315/2014. The Review Petition No.315/2014 was allowed by order dated 23.07.2015 holding that respondent No.2- Deputy Commissioner had passed the impugned order without having any jurisdiction as there was no appeal preferred before him under Section 5A of the PTCL Act. Thereafter, appellant/petitioner preferred an appeal in SC-ST (PTCL) Appeal case No.13/2015-16 along with application -5- NC: 2024:KHC:48182-DB WA No. 1427 of 2023 under Section 5 of the Indian Limitation Act for condonation of delay in preferring appeal. The said appeal was preferred in September-2015. Respondent No.2-Deputy Commissioner by impugned order dated 30.06.2020 dismissed the appeal of the appellant/petition solely on the ground of delay. Aggrieved by the said order, appellant/petitioner was before this Court in W.P.No.4365/2022. The learned Single Judge under impugned order dated 24.08.2023, dismissed the Writ Petition confirming the order passed by the Deputy Commissioner. Aggrieved by the same, appellant/petitioner is before this Court in this appeal.
4. Sri.Chandrakanth R. Goulay, the learned counsel appearing for the appellant would contend that infact the appellant had filed appeal at the first instance and based on the appeal filed by the appellant/petitioner, respondent No.2-Deputy Commissioner had passed order on 06.01.2014 allowing the appeal and restoring the land in favour of the appellant/petitioner, but as this Court observed that the order passed by the Deputy Commissioner is without there being any appeal and also taking note of the fact that there -6- NC: 2024:KHC:48182-DB WA No. 1427 of 2023 was no copy of the appeal in the original file, the appellant/petitioner filed one more appeal in the year 2015-
16.
5. It is submitted that learned Single Judge while passing the Review Order failed to examine as to whether there was appeal memorandum in the original file. In addition to the above, learned counsel for the appellant would bring to the notice of this Court the amendment brought to Section 5 of the PTCL Act, dated 27.07.2023 to the effect that there would be no limitation for invoking the provisions of the PTCL Act. Therefore, he submits that learned Single Judge could not have dismissed the Writ Petition solely on the ground of delay. Thus, he prays for allowing the Writ Appeal.
6. Per contra, Sri.Satish K., the learned counsel appearing for respondent No.4 would support the order passed by the learned Single Judge and vehemently submits that there is delay of more than 25 years in preferring the appeal before respondent No.2-Deputy Commissioner -7- NC: 2024:KHC:48182-DB WA No. 1427 of 2023 against the order passed by respondent No.3-Assistant Commissioner dated 30.04.1991. He submits that a person who sleeps over his right would not be entitled for relief under Article 226 of the Constitution of India. Moreover, he submits that there is also delay in invoking the provisions of PTCL Act. Thus, he prays for dismissal of the appeal.
7. Having heard the learned counsel appearing for the parties and on perusal of the Writ papers, we are of the opinion that no ground is made out to interfere with the order passed by the learned Single Judge and the learned Single Judge has rightly dismissed the Writ Petition solely on the ground of delay and laches on the part of the appellant.
8. As stated above, the land was granted to the appellant on 26.02.1965 and the appellant sold the land in- question to respondent No.4 under registered sale deed dated 30.07.1985. An application was filed under Section 4(2) of PTCL Act in the year 1990. On the said application, respondent No.3-Assistant Commissioner passed an order on 30.04.1991. Respondent No.2-Deputy Commissioner passed an order on 06.01.2014 allowing the appeal said to have -8- NC: 2024:KHC:48182-DB WA No. 1427 of 2023 been filed by the appellant for restoring the land in-question to the appellant. Said order was the subject matter of Writ Petition No.12489/2014 and Review Petition No.315/2014.
9. Though initially, the Writ Petition was dismissed, subsequently Review Petition filed was allowed and the learned Single Judge in Review Petition No.315/2014 at paragraph No.7 dated 23.07.2015 has observed as under:
"7. Hence, this the review petition is allowed. Order under review is set aside. Consequently, the Writ Petition deserves to be allowed because as held herein above, the Deputy Commissioner has passed the impugned order without having any jurisdiction as there was no appeal preferred before him under Section 5A of the Act. Hence, the Writ Petition is also allowed. The impugned order passed by the Deputy Commissioner is set aside."
10. The above finding by the learned Single Judge in Review Petition was based on the record summoned from respondent No.2-Deputy Commissioner. Both the paragraphs No.4 and 5 of the order makes it clear that there was no appeal by the appellant/petitioner under Section 5A of the -9- NC: 2024:KHC:48182-DB WA No. 1427 of 2023 PTCL Act. The appellant/petitioner has accepted the said finding and thereafter preferred an appeal in SC/ST (PTCL) Act in Appeal No.13/2015-16. Moreover, the appellant/ petitioner has not taken-up the order passed by this Court in R.P.No.315/2014 before any other higher Court. When the appellant/petitioner filed the appeal in September-2015 challenging the order of respondent No.3-Assistant Commissioner dated 30.04.1991, there would be delay of nearly 25 years. There is no explanation from the appellant/petitioner for such a long delay and laches. Delay and laches would disentitle a person from any relief that too under Article 226 of the Constitution of India.
11. The contention with regard to amendment to Section 5 of PTCL Act, is considered and answered by Co-ordinate Bench of this Court in Writ Appeal No.100101/2024. The finding of the Co-ordinate Bench in Writ Appeal No.100101/2024 at paragraph No.3 reads as follows:
"3. Having heard the learned counsel appearing for the appellant and the learned
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NC: 2024:KHC:48182-DB WA No. 1427 of 2023 Government Advocate, we decline indulgence in the matter for the following reasons:
(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.
(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
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NC: 2024:KHC:48182-DB WA No. 1427 of 2023 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 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 reported in 1 (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 Section and therefore, the concept of "limitation and delay"
has to remain miles away. These new clauses read as under:
"(c) notwithstanding anything contained in any law, there shall be no
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NC: 2024:KHC:48182-DB WA No. 1427 of 2023 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 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
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NC: 2024:KHC:48182-DB WA No. 1427 of 2023 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 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
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NC: 2024:KHC:48182-DB WA No. 1427 of 2023 application for restoration of land made by respondent-Rajappa was made after 2024 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 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 &
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NC: 2024:KHC:48182-DB WA No. 1427 of 2023 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 '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
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NC: 2024:KHC:48182-DB WA No. 1427 of 2023 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.
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
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NC: 2024:KHC:48182-DB WA No. 1427 of 2023 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 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.
(i) Before parting with this case, we are constrained to observe that, legislative process is not simple and easy. It has to be undertaken with a lot of care, caution & expertise. Law speaks through language. If language is not properly employed what is said is not what is meant; if what is said is not what is meant, what needs to be done remains undone or misdone. A linguistic defect thus may defeat the intent of legislation. More is not necessary to specify."
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12. Learned Single Judge has rightly observed that there is inordinate delay of more than 25 years in preferring the appeal before the Deputy Commissioner by the appellant/petitioner. There is no reason to disagree with the finding of learned Single Judge. There is no merit and accordingly the Appeal stands rejected.
Sd/-
(S.G.PANDIT) JUDGE Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE GVP List No.: 1 Sl No.: 33