Full Judgment Text
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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
Signature Not Verified
Digitally signed by
Charanjeet kaur
Date: 2021.11.29
17:28:02 IST
Reason:
enactment liberally in their favour to achieve the
objective with which it was enacted. But there can be
exceptions!
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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,
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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
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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.
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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
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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.
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Ashwatha & Ors. 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
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(2020) 14 SCC 228
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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
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Smith v. East Elloe Rural District Council 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)
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(1956) AC 736
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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
th
Administrative Law, 7 Edn. 1994.)”
13. The other judgment referred to is the case of
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Nekkanti Rama Lakshmi v. State of Karnataka & Anr. ,
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
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(2020) 14 SCC 232
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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).
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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.