Karnataka High Court
Smt. Rukmini vs The Deputy Commissioner on 28 October, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
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WA No. 1236 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
WRIT APPEAL NO. 1236 OF 2023 (SC/ST)
BETWEEN:
1. SMT. RUKMINI
W/O LATE VASU,
AGED ABOUT 59 YEARS,
R/OF FLOWER GARDEN,
CHICKPET, BENGALURU-560002.
...APPELLANT
(BY SRI.VARADARAJ RANGANATHA RAO HAVALDAR.,
ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
SHIMOGA DISTRICT,
MAHAVEER CIRCLE, SHIMOGA-577201.
Digitally signed
by 2. THE ASSISTANT COMMISSIONER
MARIGANGAIAH SHIMOGA SUB DIVISION,
PREMAKUMARI
Location: HIGH MAHAVEER CIRCLE, SHIMOGA-577201.
COURT OF
KARNATAKA
3. THE TAHASILDAR
SHIMOGA TALUK,
BALARAJ URS ROAD, SHIMOGA-577201.
4. SRI.D.M. SHANKARAPPA
S/O D MALLAPPA,
AGED ABOUT 72 YEARS,
OFFICE AT SHIVALINGESWARA
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WA No. 1236 of 2023
ARACANUT SHOP,
APMC YARD, SHIMOGA-577204.
5. SRI. MURUGA
S/O LATE MARI,
AGED ABOUT 50 YEARS,
6. SRI SUBRAMANI
S/O LATE MARI,
AGED ABOUT 40 YEARS,
R/O CHIKKAMATHLI,
HOSUDI POST, SHIMOGA-577222.
7. SRI. MURUVATHA
W/O LATE RAMU,
AGED ABOUT 60 YEARS,
8. SRI. BANGARI
S/O LATE RAMU,
AGED ABOUT 45 YEARS,
9. SRI. SATHYA
S/O LATE RAMU,
AGED ABOUT 39 YEARS,
10. SMT. KASAMMA
D/O LATE RAMU,
AGED ABOUT 55 YEARS,
11. SRI. MURUGA
S/O LATE RAMU,
AGED ABOUT 38 YEARS,
12. SRI. SHANMUGHA
S/O LATE RAMU,
AGED ABOUT 35 YEARS,
ALL ARE R/O CHIKKAMATHLI,
HOSUDI POST, SHIMOGA-577222.
13. SRI. MANJU
S/O LATE PARVATHA,
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WA No. 1236 of 2023
AGED ABOUT 28 YEARS,
R/O CHIKKAMATHLI,
HOSUDI POST, SHIMOGA-577222.
14. SRI.GOVINDASWAMY
S/O LATE GOPALA
AGED ABOUT 60 YEARS
R/O CHIKKAMATHLI,
HOOODI POST, SHIMOGA-577222.
15. SMT. AMMU
D/O LATE GOPALA,
AGED ABOUT 70 YEARS,
R/O CHIKKAMATHLI,
HOSooDI POST, SHIMOGA-577222.
...RESPONDENTS
(BY SMT.B.SUKANYA BALIGA, AGA FOR R1 TO R3)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET-ASIDE THE
ORDER DATED 24/07/2023, PASSED IN W.P.NO.14105/2023
(SC/ST), BY ALLOWING THIS APPEAL AND GRANT PRAYERS
SET-OUT IN THE WRIT PETITION WITH COSTS AND GRANT
SUCH OTHER RELIEFS.
THIS APPEAL, COMING ON FOR FINAL 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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WA No. 1236 of 2023
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE S.G.PANDIT) Appellant, daughter of original grantee is before this Court, questioning the learned Single Judge's order dated 24.07.2023 in W.P.No.14105/2023, whereby appellant's request to quash the order of first respondent - Deputy Commissioner dated 02.03.2023 allowing respondent No.1's appeal and setting aside the order of restoration is rejected.
2. Brief facts of the case are that, the land in question i.e., 2 acres in Sy.No.134, Block-II, Hosudi Village, Nidige Hobli, Shivamogga Taluk was granted to the father of appellant/petitioner on 12.08.1968. Father of the appellant/petitioner alienated the property during non- alienation period i.e., on 02.02.1976. Thereafter, several sales have taken place and it has changed many hands. That on 24.12.1997, original grantee died. More than 10 years thereafter, on 22.03.2011, daughter of the original grantee filed application for restoration under Section 5 of -5- NC: 2024:KHC:44258-DB WA No. 1236 of 2023 the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, 'PTCL Act'). The respondent No.2 - Assistant Commissioner by order dated 22.09.2020 allowed the said restoration application and directed for restoration. Respondent No.4 herein filed appeal before the first respondent - Deputy Commissioner. Deputy Commissioner by order dated 02.03.2023, allowed the appeal and set aside the order of second respondent - Assistant Commissioner. Challenging the order of Deputy Commissioner, appellant was before this Court in W.P.No.14105/2023. Learned Single Judge under impugned order dated 24.07.2023 rejected the writ petition on the ground of delay and laches and also on the ground that land was granted to the father of appellant/petitioner on upset price of Rs.1,000/- and only on deposit of the auction upset price, grant certificate was issued in Form No.1.
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3. Heard the learned counsel Sri.Varadaraj Ranganatha Rao Havaldar for appellant and learned Additional Government Advocate Smt.B.Sukanya Baliga for respondent Nos.1 to 3. Perused the entire writ appeal papers.
4. Learned counsel for the appellant Sri.Varadaraj Ranganatha Rao Havaldar would submit that order of the learned Single Judge as well as first respondent - Deputy Commissioner are contrary to the facts and material on record. Further, by referring to the order of Assistant Commissioner submits that Assistant Commissioner had remanded the matter for fresh consideration and to find out as to whether the father of appellant/petitioner was original grantee and to re-examine as to whether the original grantee belongs to Scheduled Caste/Scheduled Tribes. Thus, learned counsel would submit that there was no necessity to set aside such an order. Further, learned counsel would submit that learned Single Judge was also not right in observing that appellant/petitioner's father -7- NC: 2024:KHC:44258-DB WA No. 1236 of 2023 purchased property in a public auction and therefore he has acquired absolute right and title over the property and it would not fall within the definition of granted land. Further, he submits that learned Single Judge misread the grant certificate and has arrived at such conclusion. Thus, he prays for allowing the appeal.
5. Per contra, learned Additional Government Advocate would support the order passed by the learned Single Judge and submits that there is delay of more than 35 years in invoking the provisions of PTCL Act and there is no explanation whatsoever for the delay and laches. In that circumstances, learned Additional Government Advocate would pray for dismissal of the writ appeal.
6. Having heard the learned counsel appearing for the parties and on perusal of the writ appeal papers, we are of the view that no ground is made out to interfere with the impugned order of learned Single Judge for the following reasons:
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7. Admittedly, grant in favour of the father of appellant/petitioner is dated 12.08.1968. Further, admittedly first alienation has taken place under registered sale deed dated 02.02.1976 by father of appellant/petitioner. Respondent No.4 is the fifth purchaser under the sale deed dated 18.11.1994. As observed by the learned Single Judge, property has changed several hands and at present, it is with the fourth respondent. Further, original grantee died on 24.12.1997. Though the grant was in the year 1968 and the PTCL Act came into effect from 1978, original grantee has not chosen to invoke the provisions of PTCL Act or to initiate any other proceedings. However, long after the death of original grantee, appellant/petitioner - daughter of the original grantee filed application under Section 5 of the PTCL Act only on 22.03.2011 i.e., more than 35 years after the grant and more than 25 years after coming into force of PTCL Act. There is no explanation whatsoever for the delay in approaching the Court. -9-
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8. Learned counsel for the appellant has raised contention that there is amendment to Section 5 of the PTCL Act stating that there is no limitation to file restoration application and the said amended provision is under challenge before this Court. The above contentions are dealt with by the Co-ordinate Bench of this Court in SMT. GOURAMMA @ GANGAMMA VS. THE DEPUTY COMMISSIONER, HAVERI AND OTHERS1. Relevant portion at paragraph 3 (a) to (h) of the said judgment reads 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 1 W.A.No.100101/2024 dated 29.07.2024
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NC: 2024:KHC:44258-DB WA No. 1236 of 2023 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 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
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NC: 2024:KHC:44258-DB WA No. 1236 of 2023 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 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
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(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.
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(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 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
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NC: 2024:KHC:44258-DB WA No. 1236 of 2023 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 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.
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NC: 2024:KHC:44258-DB WA No. 1236 of 2023 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
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NC: 2024:KHC:44258-DB WA No. 1236 of 2023 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.
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
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NC: 2024:KHC:44258-DB WA No. 1236 of 2023 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."
9. Learned Single Judge on examination of Annexure-F - Grant Certificate has come to a conclusion that appellant/petitioner's father participated in a public auction and deposited auction price of Rs.1,000/- and only on deposit of the entire auction price, grant certificate has been issued in Form No.1. When the father of appellant/petitioner has purchased the property in public auction, it is not a grant within the definition of PTCL Act.
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NC: 2024:KHC:44258-DB WA No. 1236 of 2023 Thus, on this ground also, learned Single Judge is justified in dismissing the writ petition.
10. More importantly, delay defeats everything. When there is more than 35 years delay on the part of the appellant/petitioner to approach the legal forum that too, after the death of original grantee, such person would not be entitled to any relief under Article 226 of the Constitution of India. Thus, we do not find any merit in the writ appeal and accordingly writ appeal stands rejected.
Sd/-
(S.G.PANDIT) JUDGE Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE NC.
List No.: 1 Sl No.: 31