SHIVANNA (DEAD) THROUGH LRS. versus STATE OF KARNATAKA & ORS. on 25 November 2021

O R D E R

1. The Karnataka Scheduled Caste and Scheduled TribesF(Prohibition on Transfer of Certain Lands) Act, 1978 was enacted andbrought into force from 01.01.1979 as a measure of amelioration andprotection of lands granted to the SC/ST community which was soughtto be purchased by third parties depriving the very objective of providingeconomic empowerment to these communities. So we must begin byGrecording that the widest amplitude must be given to protect the rights ofthese communities by construing the enactment liberally in their favourto achieve the objective with which it was enacted. But there can beexceptions!

2. We are faced with one such exception here in the context ofHthe factual matrix before us. In the present case, two acres of land was

granted to one Late Junjappa on 07.06.1941. Junjappa belonged to theAdi Karnataka Caste (Scheduled Caste). The land is stated to be freeof cost. However, we may notice from the impugned order that apparentlythe records could not be produced by the revenue authorities as theywere not traceable nor the document for conferment of right wereproduced by respondent No.4/claimant. However, conclusion was soughtto be derived on the basis of the other material on record that this landwas free of cost. The consequence of the land being free of cost andsuch allotment is contained in Rules under the Mysore Land RevenueCode. The relevant portion of the Code is as under:

“43(8) Occupancies granted to applicants belonging to DepressedClasses under Rule 43(5) above and those granted by Government free of upset prices or reduced upset price to poor and landlesspeople of other communities or to religious or charitable institutions,shall not be alienated and the grantees shall execute mutchalikasin the form prescribed by Government. This shall not, however,prevent lands granted to Depressed classes under Rule 43(5) beingaccepted as security for any loan which they may wish to obtainfrom Government or from co-operative society for the bona fidepurposes of improving the land.”

The effect of the aforesaid is that there is an absolute bar toalienation.

3. On 20.12.1971, one acre of land was sold to the originalpetitioner/appellant Shivanna now represented by the legal heirs inviolation of the Rules. In fact, for record, on 20.12.1972 the remainingone acre was also sold to one third party. That third party, in turn, isstated to have sold to respondent No.5 on 20.06.1974.

4. Post these transactions, the said Act came into force on01.01.1979. Respondent No.4 before us claims to be the grandson ofthe original grantee and is stated to have been born around 1967. Hewould have attained majority in and around 1985. However, neither theoriginal owner, nor his son or the grandson/respondent No. 4 laid anyclaim for the land of the appellant for annulment of transfer till 04.10.2000when an application was filed before the Assistant Commissioner underSection 4 of the said Act. The Assistant Commissioner, though recordswere not available, passed an order on 24.09.2002 invalidating the salesand seeking to restore the land to respondent No. 4. The appeal preferred A

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Aby the appellant was allowed on 26.04.2004 predicated on a reasoningof non-alienation period being fifteen years. Thus, the respondent No. 4laid a challenge before the High Court by filing Writ Petition No.21473/2004 and Writ Petition No. 21475/2004 in respect of both portions of theland of the appellant and respondent No. 5. The Writ Petitions werehowever, dismissed by order dated 30.11.2004 predicated on a statedBviolation of Rule 43(8) of the Code. The intra-Court appeal filed by theappellant was dismissed on 30.01.2009.

5. In the Special Leave Petition filed before this Court, noticewas issued on 08.07.2010 and parties were directed to maintain statusquo with regard to the land in question. Ultimately, leave was grantedCon 29.07.2013 with the interim order directed to be continued.

6. The appeal has now been taken up for consideration.

7. We have heard learned counsel for parties.

8. There are various pleas raised by the appellant in defence inDthe proceedings below including adverse possession. However, beforeus, primarily, the case rested on two aspects: first, being the absence ofdocuments and the presumption sought to be drawn under Rule 43(8)without consideration of the documents. Secondly, that the principles ofdelay and laches must come to the aid of the appellant(s) in view of theEpassage of time which has already elapsed even if the strict principles oflimitation do not apply.

9. Insofar as the first aspect is concerned, it is the submission oflearned counsel for respondent No.4 that, at best, the said could be acase for remand for locating the documents and consideration, thoughFhis submission is that Rule 43(8) creates an absolute bar against alienationand from the documents on record the authorities have deciphered thatit was a free grant. On the second aspect it is stated that the lapse oftime itself should not defeat the valuable right when the sale by hisgrandfather is contrary to Rule 43(8) of the Code and in the teeth of thesubsequent legislation.G

10. While fully appreciating the concerns expressed by learnedsenior counsel for respondent No.4, we are of the view that the givenfacts of the case require us to take a different view. The reason fordoing so, despite the clear bar of Rule 43(8) [since the transaction inquestion is much before the Act came into force] is the extraordinaryHtime period which has elapsed. If we turn to the dates in question, the transaction took place on 20.12.1971, seven years before the Act cameinto force. The respondent No.4 was born some time in 1967 and thus,would have attained majority around the year 1985. At that stage atleast he was aware and entitled to enforce the rights which he claimswere deprived of by transfer of land by a registered document by hisgrandfather. He did not do so and in fact his father also never did so. Itis after a lapse of another 12 years from even his attaining majority thatrespondent No.4 sought to exercise the rights.

11. In respect of the aforesaid position, learned counsel for theappellant has drawn our attention to two judicial pronouncements in asimilar scenario in this behalf. In Vivek M. Hinduja & Ors. v.M. Ashwatha & Ors.[1] the provisions of the same Act were beingconsidered and the grant was of the period 1946-47. The transfer tookplace in 1967 and thereafter also further transfers took place with theappellants being the subsequent purchasers. It was opined on the basisof past judicial proceedings that the exercise whether on suo motu or onapplication, must be within a reasonable time, since no time wasprescribed by law for taking such action. (In those cases action hadbeen initiated after about 20-25 years of the coming into force of thesaid Act). In the given case, the action was initiated after 20 years, andthus, the Court opined that no reason was seen as to why delay shouldbe considered to be reasonable.

12. The Court took note of the observations in Smith v. East ElloeRural District Council[2] which reads as under:

“…...An order, even if not made in good faith, is still an act capableof legal consequences. It bears no brand of invalidity on itsforehead. Unless the necessary proceedings are taken at law toestablish the cause of invalidating and to get it quashed or otherwiseupset, it will remain as effective for its ostensible purpose, as themost impeccable of orders. (Smith Case, AC pp.769-70)

(emphasis supplied)

This must be equally true even where the brand of invalidity isplainly visible: for there also the order can effectively be resistedin law only by obtaining the decision of the Court. The necessityof recourse to the Court has been pointed out (sic) repeatedly in 1 (2020) 14 SCC 288

2 (1956) AC 736

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1110SUPREME COURT REPORTS

[2021] 7 S.C.R.

Athe House of Lords and Privy Council without distinction betweenpatent and latent defects. (Ed. Wade and Forsyth in AdministrativeLaw, 7[th] Edn. 1994.)”

13. The other judgment referred to is the case of Nekkanti RamaLakshmi v. State of Karnataka & Anr.[3], whichonce again wasBconcerned with the same enactment. The application by the legal heir ofthe grantee was filed after 25 years of the Act coming into force. Onceagain, the original grant was not produced. The Court found with regardto Section 5 of the said Act which enables an interested person to makean application for having the transfer annulled and void under Section 4of the Act, that it did not prescribe any period of limitation this was soCwhether on filing of an application or suo motu proceedings or by anapplication but opined that it must be taken within a reasonable time.Once again it found no cause to condone the unreasonable delay.

14. The present case is under the same Act with the period ofdelay being 21 years from the date the Act came into force and 30 yearsDfrom the transaction and to that extent even the time periods are similar.We have already noticed that even if we take the age of majority of therespondent No.4, the application was filed 12 years after the same.

15. In view of the aforesaid facts and circumstances and followingthe dicta laid down in Vivek M. Hinduja (supra)’s caseand NekkantiERama Lakshmi (supra)’s case we are of the view that inordinate delaycannot be condoned and the period of delay can by no stretch ofimagination be said to be reasonable.

16. The result of the aforesaid is that the impugned orders of theAssistant Commissioner, learned Single Judge and the Division BenchFare set aside and the order of the Special Deputy Commissioner isaffirmed. The consequence would be that the land would continue tovest with the appellant(s).

17. The appeal is accordingly allowed leaving parties to bear theirown costs.

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Bibhuti Bhushan Bose

Appeal allowed.

H3 (2020) 14 SCC 232