SHIVANNA (DEAD) THROUGH LRS.versusSTATE OF KARNATAKA & ORS.

                        [2021] 7 S.C.R. 1105                            1105


              SHIVANNA (DEAD) THROUGH LRS.                              A
                                 v.
                STATE OF KARNATAKA & ORS.
                   (Civil Appeal No.6212 of 2013)
                       NOVEMBER 25, 2021                                B
   [SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]
       Land Laws – Free grant of land to person from Scheduled
Caste community – Such land sold to appellant in violation of Rules
under the Mysore Land Revenue Code – Post the transaction, the
                                                                        C
1978 Act came into force on 01.01.1979 – Respondent No.4 claims
to be the grandson of the original grantee – Neither the original
owner, nor his son or the grandson/respondent No.4 laid any claim
for the land of appellant for annulment of transfer till 04.10.2000
when an application was filed before the Assistant Commissioner u/
s.4 of the Act of 1978 – The Assistant Commissioner passed an           D
order invalidating the sale and seeking to restore the land to
respondent No.4 – Propriety – Held: Widest amplitude must be given
to protect the rights of the SC/ ST community by construing the
enactment (Act of 1978) liberally in their favour to achieve the
objective with which it was enacted – But there can be exceptions
                                                                        E
such as the present case, where despite the clear bar of Rule 43(8)
[since the transaction in question was much before the Act of 1978
came into force] an extraordinary time period had elapsed – The
transaction took place on 20.12.1971, seven years before the Act
of 1978 came into force – Respondent No.4 was born some time in
1967 and thus, would have attained majority around the year 1985        F
– 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
                                                                        G
to exercise the rights – The period of delay was 21 years from the
date the Act of 1978 came into force and 30 years from the
transaction – Inordinate delay cannot be condoned and the period
of delay can by no stretch of imagination be said to be reasonable
– Resultantly, impugned orders of the Assistant Commissioner set
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                                1105
1106            SUPREME COURT REPORTS                          [2021] 7 S.C.R.


 A     aside – The land would continue to vest with the appellant(s) –
       Rules under the Mysore Land Revenue Code – Rule 43(8) –
       Karnataka Scheduled Caste and Scheduled Tribes (Prohibition on
       Transfer of Certain Lands) Act, 1978 – s.4 – Delay / Laches.
             Vivek M. Hinduja & Ors. v. M. Ashwatha & Ors. (2020)
 B           14 SCC 228; Nekkanti Rama Lakshmi v. State of
             Karnataka & Anr. (2020) 14 SCC 232 – relied on.
             Smith v. East Elloe Rural District Council (1956) AC
             736 – referred to.
                               Case Law Reference
 C
       (2020) 14 SCC 228                 relied on                Para 11
       (2020) 14 SCC 232                 relied on                Para 13
             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6212
       of 2013.
 D
             From the Judgment and Order dated 30.01.2009 of the High Court
       of Karnataka at Bangalore in Writ Appeal No.1451 of 2005 (SC/ST).
             S. N. Bhat, Adv. for the Appellants.
              Arvind Verma, Sr. Adv., Mahesh Thakur, Vipasha Singh, Ajay
 E     Kanojiya, G. N. Reddy, T. S. Sabarish, Vishnu Unnikrishnan,
       Dr. R. Maheswari, Ms. Archana Nishanth, Advs. for the Respondents.
             The following order of the Court was passed :
                                     ORDER

 F            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
 G     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. We are faced with one such exception here in the context of
 H     the factual matrix before us. In the present case, two acres of land was
       SHIVANNA (DEAD) THROUGH LRS. v. STATE OF                                 1107
                  KARNATAKA & ORS.

granted to one Late Junjappa on 07.06.1941. Junjappa belonged to the            A
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
                                                                                B
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            C
      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, however,
      prevent lands granted to Depressed classes under Rule 43(5) being         D
      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.                                                                     E
       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.                           F
       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           G
claim for the land of the appellant for annulment of transfer till 04.10.2000
when an application was filed before the 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
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1108             SUPREME COURT REPORTS                           [2021] 7 S.C.R.


 A     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
 B
       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
 C     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.
              8. There are various pleas raised by the appellant in defence in
 D     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
 E     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
 F     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.
 G
              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 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
 H     time period which has elapsed. If we turn to the dates in question, the
          SHIVANNA (DEAD) THROUGH LRS. v. STATE OF                                1109
                     KARNATAKA & ORS.

transaction took place on 20.12.1971, seven years before the Act came             A
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
                                                                                  B
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                     C
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 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                  D
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.
                                                                                  E
      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           F
         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)
         This must be equally true even where the brand of invalidity is          G
         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
1
    (2020) 14 SCC 288
2
    (1956) AC 736                                                                 H
1110               SUPREME COURT REPORTS                         [2021] 7 S.C.R.


 A              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
 B     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
 C     whether on filing of an application or suo motu proceedings or by an
       application 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 of
       delay being 21 years from the date the Act came into force and 30 years
 D     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 caseand Nekkanti
 E     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
 F     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).
            17. The appeal is accordingly allowed leaving parties to bear their
       own costs.
 G

       Bibhuti Bhushan Bose                                         Appeal allowed.




 H     3
           (2020) 14 SCC 232