Karnataka High Court
Sri G Narayanaswamy vs The Deputy Commissioner on 20 November, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH 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.799 OF 2023 (SC-ST)
BETWEEN:
1. SRI.G.NARAYANASWAMY
S/O GULLAPPA
AGED ABOUT 54 YEARS
2. SRI.RAJANNA
S/O.GULLAPPA
AGED ABOUT 50 YEARS
BOTH ARE R/AT THYAVAKANAHALLY
BIDIRUGUPPE POST
LALBAGH ROAD, WILSON GARDEN,
BENGALURU URBAN DISTRICT - 562 107
... APPELLANTS
(BY SRI.V.PADMANABHA MAHALE., SENIOR COUNSEL A/W
SRI.VISHWAJITH RAI.M., ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
BANGALORE DISTRICT
BENGALURU - 560 001
2. THE ASSISTANT COMMISSIONER
BANGALORE SOUTH SUB-DIVISION
BENGALURU - 560 001.
3. SRI.B.S.PARAMESH
S/O.B.M.SIDDALINGAIAH
2
MAJOR, R/AT NO.607
6TH STAGE, 15TH CROSS
J.P.NAGAR, BENGALURU-560 078
... RESPONDENTS
(BY SMT.B.SUKANYA BALIGA., AGA FOR R-1 & R-2)
THIS APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER DATED 30.05.2023 PASSED BY THE HON'BLE
LEARNED SINGLE JUSGE IN W.P. NO.49212/2012 (SC/ST)
AND CONSEQUENTLY ALLOW THE WRIT PETITION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 19.11.2024 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) Appellants, legal heirs of the original grantee are in appeal under Section 4 of the Karnataka High Court Act, 1961 questioning the correctness and legality of the learned Single Judge's order dated 30.05.2023 in W.P.No.49212/2012 wherein the appellants' challenge to first respondent - Deputy Commissioner's order dated 07.11.2012 setting aside the order of restoration and resumption is rejected. 3
2. Brief facts of the case are that, the appellants are the grandsons of the original grantee who was granted land on 10.07.1940. Son of the original grantee sold the entire extent of granted land measuring 2 acres 7 guntas in Sy.No.118 of Adigarakalahalli Village, Anekal Taluk under two registered sale deeds dated 19.02.1973 and 09.04.1973 in favour of one Sri.T.N.Basavaraj. Said Sri.T.N.Basavaraj in turn sold the same under registered sale deed dated 30.06.2007 to respondent No.3. Appellants - grandchildren of the original grantee filed petition under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, 'PTCL Act') seeking restoration of the land in question. Second respondent - Assistant Commissioner by order dated 27.11.2008 (Annexure-E) ordered restoration by allowing the application filed under Section 5 of the 4 PTCL Act and directed to restore the land. Aggrieved by the same, third respondent herein preferred appeal before the first respondent - Deputy Commissioner. The first respondent - Deputy Commissioner by order dated 07.11.2012 set aside the order of the Assistant Commissioner. Feeling aggrieved, appellants filed writ petition before the learned Single Judge in W.P.No.49212/2012. Learned Single Judge under impugned order dated 30.05.2023, dismissed the writ petition solely on the ground of delay and laches. Aggrieved by the same, grandchildren of the original grantee are in appeal.
3. Heard the learned senior counsel Sri.V.Padmanabha Mahale., for Sri.Vishwajith Rai., learned counsel for appellants and learned Additional Government Advocate Smt.B.Sukanya Baliga for respondent Nos.1 and 2. Perused the entire writ appeal papers.
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4. Learned senior counsel Sri.V.Padmanabha Mahale would contend that learned Single Judge committed grave error in dismissing the writ petition of the appellants solely on the ground of delay, without considering other contentions of the appellants. Learned senior counsel would submit that learned Single Judge could not have dismissed the writ petition solely on the ground of delay and laches, since the sale is in contravention of Section 4 of the PTCL Act and it was for the authorities to initiate suo motu powers to restore the land. Learned senior counsel would further submit that statute itself declares that if transfer is contrary to the provisions of the Act, would be null and void. In that circumstances, he submits that no enquiry is required to find out as to whether the sale is null and void. Further, learned senior counsel would submit that as on this date, Section 5 of the PTCL Act is amended to say that there 6 shall be no limitation of time to invoke the provisions of PTCL Act and the said amendment would apply to all the cases pending before the competent authorities and all the Courts of law, adjudicating under the provisions of PTCL Act. Therefore, when the statute itself is amended to say that there is no limitation to invoke the provisions of PTCL Act, learned Single Judge committed grave error in dismissing the writ petition solely on the ground of delay and laches. Thus, he prays for allowing the appeal.
5. Learned senior counsel would further submit that amendment brought to Section 5 of the PTCL Act is under challenge and the said challenge is pending before the Co-ordinate Bench of this Court. Hence, he prays for deferring the hearing of this appeal.
6. Per contra, learned Additional Government Advocate Smt.B.Sukanya Baliga would support the order 7 passed by the learned Single Judge and submits that the Hon'ble Apex Court in the case of NEKKANTI RAMA LAKSHMI Vs. STATE OF KARNATAKA1 has made it clear that tardy and belated claims should not be entertained. Further, learned Additional Government Advocate would submit that there is no explanation for the delay in approaching the Court. It is submitted that there is delay of nearly 34 years in invoking the provisions of PTCL Act and there is no explanation whatsoever for the delay in invoking the provisions of PTCL Act. Thus, she prays for dismissal of the writ appeal.
7. Having heard the learned counsel appearing for the parties and on perusal of the writ appeal papers, the only point which arises for our consideration is as to, "Whether the learned Single Judge's order requires interference?"
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(2020) 14 SCC 232 8
8. The answer to the above point would be that, no interference is needed at the hands of this Court in the facts and circumstances of the case for the following reasons:
9. There is no dispute with regard to facts. Admittedly grandfather of the appellants was granted land on 10.07.1940 and his son alienated the entire extent of land under sale deeds dated 19.02.1973 and 09.04.1973 in favour of one Sri.T.N.Basavaraj. Said Sri.T.N.Basavaraj sold the same under registered sale deed dated 30.06.2007 in favour of respondent No.3. The grandson of the original grantee admittedly filed application under Section 5 of the PTCL Act on 27.11.2008 nearly 34 years from the date of first sale. There is no explanation whatsoever for the delay of 34 years in invoking the provisions of PTCL Act for restoration of the granted land.
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10. The Hon'ble Apex Court in NEKKANTI RAMA LAKSHMI (supra) while examining Section 5 of the PTCL Act examined the question of limitation and held that where there is inordinate delay in making application under Section 5 of the PTCL Act, such application would not be maintainable. In normal course also, where the limitation is prescribed and where Section 5 of the Limitation Act is applicable, if proper explanation is offered for the delay in approaching the Court or sufficient cause is shown for the delay, the Courts are bound to condone the delay. In the cases arising out of Section 4 or Section 5 of the PTCL Act also, if there is explanation for the delay and if sufficient cause is shown for the delay in approaching the authorities as well as this Court, bound to consider such explanation or cause shown. 10
11. It is true that the State by amendment to Section 5 of the PTCL Act has inserted provision to state that notwithstanding anything contained in any law, there shall be no limitation of time to invoke the provisions of the PTCL Act. Under the original provision also, there was no prescribed limitation period to approach the authorities by filing application under Section 5 of the PTCL Act. In that circumstances, the Hon'ble Apex Court while examining Section 5 of the PTCL Act in NEKKANTI RAMA LAKSHMI (supra) has observed that application for restoration of land shall have to be made within a reasonable time.
12. Be that as it may, pendency of writ petition questioning the validity of amendment would have no bearing on the present case. The contentions urged by the learned senior counsel Sri.V.Padmanabha Mahale on behalf of the appellants would fall for consideration only if the appellants provide sufficient cause or explain 11 the delay in approaching the authorities. When there is more than 34 years delay in approaching the authorities, delay and laches would eat away the merits of the case. Normally, Article 226 of the Constitution of India would not come to the aid of a person who sleeps over his right and would not knock the doors of the justice within a reasonable time. To this effect, there is legal maxim i.e., vigilantibus non dormientibus jura subveniunt, means "the law assists only those who are vigilant and not those who sleep over their rights".
13. A Co-ordinate Bench of this Court in the case of SMT. GOURAMMA @ GANGAMMA VS. THE DEPUTY COMMISSIONER, HAVERI AND OTHERS2 had an occasion to consider similar contentions raised herein and the Co-ordinate Bench has answered the same, which reads as follows:
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W.A.No.100101/2024 dated 29.07.2024 12 "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.
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(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 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 14 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 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 15 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 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 16 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 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) 17 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. 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. 18
(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.
21. The word "laches" is derived from the French language meaning 19 "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 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 20 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. There is no merit in the writ appeal and accordingly writ appeal stands rejected.
Sd/-
(S. G. PANDIT) JUDGE Sd/-
(RAMACHANDRA D.HUDDAR) JUDGE NC.
CT: RS