Shivanna (Dead) Through Lrs vs State Of Karnataka

1 2021 INSC 787 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6212/2013

SHIVANNA (DEAD) THROUGH LRS. Appellant(s)

VERSUS

STATE OF KARNATAKA & ORS. Respondent(s)

O R D E R

1. The Karnataka Scheduled Caste and Scheduled

Tribes (Prohibition on Transfer of Certain Lands) Act,

1978 was enacted and brought into force from

01.01.1979 as a measure of amelioration and protection

of lands granted to the SC/ST community which was

sought to be purchased by third parties depriving the

very objective of providing economic empowerment to

these communities. So we must begin by recording that

the widest amplitude must be given to protect the

rights of these communities by construing the

enactment liberally in their favour to achieve the

objective with which it was enacted. But there can be

exceptions! 2

2. We are faced with one such exception here in

the context of the 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 the

Adi Karnataka Caste (Scheduled Caste). The land is

stated to be free of cost. However, we may notice from

the impugned order that apparently the records could

not be produced by the revenue authorities as they

were not traceable nor the document for conferment of

right were produced by respondent No.4/claimant.

However, conclusion was sought to be derived on the

basis of the other material on record that this land

was free of cost. The consequence of the land being

free of cost and such allotment is contained in Rules

under the Mysore Land Revenue Code. The relevant

portion of the Code is as under:

“43(8) Occupancies granted to applicants

belonging to Depressed Classes under Rule

43(5) above and those granted by

Government free of upset prices or

reduced upset price to poor and landless

people of other communities or to

religious or charitable institutions,

shall not be alienated and the grantees

shall execute mutchalikas in the form

prescribed by Government. This shall not, 3

however, prevent lands granted to

Depressed classes under Rule 43(5) being

accepted as security for any loan which

they may wish to obtain from Government

or from co-operative society for the bona

fide purposes of improving the land.”

The effect of the aforesaid is that there is an

absolute bar to alienation.

3. On 20.12.1971, one acre of land was sold to the

original petitioner/appellant Shivanna now represented

by the legal heirs in violation of the Rules. In fact,

for record, on 20.12.1972 the remaining one acre was

also sold to one third party. That third party, in

turn, is stated to have sold to respondent No.5 on

20.06.1974.

4. Post these transactions, the said Act came into

force on 01.01.1979. Respondent No.4 before us claims

to be the grandson of the original grantee and is

stated to have been born around 1967. He would have

attained majority in and around 1985. However, neither

the original owner, nor his son or the

grandson/respondent No.4 laid any claim for the land

of the appellant for annulment of transfer till

04.10.2000 when an application was filed before the 4

Assistant Commissioner under Section 4 of the said

Act. The Assistant Commissioner, though records were

not available, passed an order on 24.09.2002

invalidating the sales and seeking to restore the land

to respondent No.4. The appeal preferred by the

appellant was allowed on 26.04.2004 predicated on a

reasoning of non-alienation period being fifteen

years. Thus, the respondent No.4 laid 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 the land of the appellant

and respondent No.5. The Writ Petitions were however,

dismissed by order dated 30.11.2004 predicated on a

stated violation of Rule 43(8) of the Code. The

intra-Court appeal filed by the appellant was

dismissed on 30.01.2009.

5. In the Special Leave Petition filed before this

Court, notice was issued on 08.07.2010 and parties

were directed to maintain status quo with regard to

the land in question. Ultimately, leave was granted on

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. 5

8. There are various pleas raised by the appellant

in defence in the proceedings below including adverse

possession. However, before us, primarily, the case

rested on two aspects: first, being the absence of

documents and the presumption sought to be drawn under

Rule 43(8) without consideration of the documents.

Secondly, that the principles of delay and laches must

come to the aid of the appellant(s) in view of the

passage of time which has already elapsed even if the

strict principles of limitation do not apply.

9. Insofar as the first aspect is concerned, it is

the submission of learned counsel for respondent No.4

that, at best, the said could be a case for remand for

locating the documents and consideration, though his

submission is that Rule 43(8) creates an absolute bar

against alienation and from the documents on record

the authorities have deciphered that it was a free

grant. On the second aspect it is stated that the

lapse of time itself should not defeat the valuable

right when the sale by his grandfather is contrary to

Rule 43(8) of the Code and in the teeth of the

subsequent legislation.

10. While fully appreciating the concerns expressed

by learned senior counsel for respondent No.4, we are

of the view that the given facts of the case require 6

us to take a different view. The reason for doing so,

despite the clear bar of Rule 43(8) [since the

transaction in question is much before the Act came

into force] is the extraordinary time 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 came into force. The respondent No.4

was born some time in 1967 and thus, would have

attained majority around the year 1985. At that stage

at least he was aware and entitled to enforce the

rights which he claims were deprived of by transfer of

land by a registered document by his grandfather. He

did not do so and in fact his father also never did

so. It is after a lapse of another 12 years from even

his attaining majority that respondent No.4 sought to

exercise the rights.

11. In respect of the aforesaid position, learned

counsel for the appellant has drawn our attention to

two judicial pronouncements in a similar scenario in

this behalf. In Vivek M. Hinduja & Ors. v. M.

Ashwatha & Ors.1 the provisions of the same Act were

being considered and the grant was of the period 1946-

47. The transfer took place in 1967 and thereafter

also further transfers took place with the appellants

being the subsequent purchasers. It was opined on the

1 (2020) 14 SCC 228 7

basis of past judicial proceedings that the exercise

whether on suo motu or on application, must be within

a reasonable time, since no time was prescribed by law

for taking such action. (In those cases action had

been initiated after about 20-25 years of the coming

into force of the said Act). In the given case, the

action was initiated after 20 years, and thus, the

Court opined that no reason was seen as to why delay

should be considered to be reasonable.

12. The Court took note of the observations in

Smith v. East Elloe Rural District Council2 which

reads as under:

“…...An order, even if not made in good

faith, is still an act capable of legal

consequences. It bears no brand of

invalidity on its forehead. Unless the

necessary proceedings are taken at law to

establish the cause of invalidating and

to get it quashed or otherwise upset, it

will remain as effective for its

ostensible purpose, as the most

impeccable of orders. (Smith Case, AC

pp.769-70)

(emphasis supplied)

2 (1956) AC 736 8

This must be equally true even where the

brand of invalidity is plainly visible:

for there also the order can effectively

be resisted in law only by obtaining the

decision of the Court. The necessity of

recourse to the Court has been pointed

out (sic) repeatedly in the House of

Lords and Privy Council without

distinction between patent and latent

defects. (Ed. Wade and Forsyth in

Administrative Law, 7th Edn. 1994.)”

13. The other judgment referred to is the case of

Nekkanti Rama Lakshmi v. State of Karnataka & Anr.3,

whichonce again was concerned with the same enactment.

The application by the legal heir of the grantee was

filed after 25 years of the Act coming into force.

Once again, the original grant was not produced. The

Court found with regard to Section 5 of the said Act

which enables an interested person to make an

application for having the transfer annulled and void

under Section 4 of the Act, that it did not prescribe

any period of limitation this was so whether on filing

of an application or suo motu proceedings or by an

application but opined that it must be taken within a 3 (2020) 14 SCC 232 9

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 of delay being 21 years from the date the Act

came into force and 30 years from 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 the respondent No.4, the application was

filed 12 years after the same.

15. In view of the aforesaid facts and

circumstances and following the dicta laid down in Vivek M. Hinduja (supra)’s case and Nekkanti Rama

Lakshmi (supra)’s case we are of the view that

inordinate delay cannot be condoned and the period of

delay can by no stretch of imagination be said to be

reasonable.

16. The result of the aforesaid is that the

impugned orders of the Assistant Commissioner, learned

Single Judge and the Division Bench are set aside and

the order of the Special Deputy Commissioner is

affirmed. The consequence would be that the land would

continue to vest with the appellant(s). 10

17. The appeal is accordingly allowed leaving

parties to bear their own costs.

…………………………………………………………J. [SANJAY KISHAN KAUL]

…………………………………………………………J. [M.M. SUNDRESH]

NEW DELHI, NOVEMBER 25, 2021.