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2003 DIGILAW 82 (KAR)

SHESHAGIRI v. LAND TRIBUNAL

2003-01-24

body2003
( 1 ) THE learned Government Advocate accepts notice for R1 and 2. Notice to R3 to 17 is dispensed with. ( 2 ) THE petitioner assailing the legality and validity of the order dated 23. 6. 1976 in No. TNC : SR ; 460 (Annexure-D) passed by the 1st respondent has presented this writ petition. ( 3 ) THE grievance of the petitioner is that, he being the brother of R 17 - Sri Vaman S/o Naryana Kulkarni is the joint owner of C. S. No. 89 measuring 41 acres 05 guntas situated at Chikkaasangi village in Basavana Bagewadi Taluk, Bijapur District. They are personally cultivating the land in question. Since their relationship is strained they partitioned the land in two equal and separate strips and they are cultivating their individual strips separately and personally. In view of the amendment to the Karnataka Land Reforms Act 1973, the predecessors of respondents 3 to 16 filed Form No. 7 for grant of occupancy rights in respect of the land in question on 28. 10. 1974; the petitioner was not impleaded as a party to the said application or in the proceedings before the Land Tribunal and only the brother of the petitioner, respondent No. 17 was a party. Further, it is the case of the petitioner that, notice was issued to his brother Vaman S/o Narayan Kulkarni stating that the date of hearing was fixed on 23. 6. 1976. Though the date of hearing was fixed on 23. 6. 1976, the case was taken on 22. 6. 1976 and statement of both the parties were recorded, but not by the Chairman. The land Tribunal after considering the material on record granted occupancy rights in favour of R3 to R 16. The said order was not communicated to the petitioner, as such, he was not aware of the same till the 1st week of October 2002, when respondents tried to interfere with the petitioners peaceful possession and enjoyment of the land in question. Thereafter, he applied for certified copies and approached this court by way of filing this writ petition. Therefore, there is a delay in filing the writ petition and the said delay was not intentional. Assailing the correctness of the impugned order passed by the 1st respondent Land Tribunal on 23. 6. 1976, the petitioner has presented this writ petition. Thereafter, he applied for certified copies and approached this court by way of filing this writ petition. Therefore, there is a delay in filing the writ petition and the said delay was not intentional. Assailing the correctness of the impugned order passed by the 1st respondent Land Tribunal on 23. 6. 1976, the petitioner has presented this writ petition. ( 4 ) HEARD the learned counsel for the petitioner and the learned Government Advocate for R1 and 2 at a considerable length of time. ( 5 ) THE principal submission of the learned counsel for the petitioner is that, the petitioner being the brother of one Sri. Vaman s/o Narayan Kulkarni, has got his share in the joint family properties and entitled for notice. But in the instant case, no notice was issued to the petitioner before passing the impugned order, though he is the owner of the land. In view of not impleading the petitioner as a party to the proceedings, the impugned order passed by the Tribunal was without jurisdiction. He specifically contended that there was no notice to the petitioner, though he is the owner of the land. Hence, the entire enquiry conducted by the 1st respondent was illegal and contrary to the relevant provisions of the Land Reforms Act and Rules. To substantiate his submission, he placed reliance on the judgement of this court in the case of ANJANAPPA vs LAND TRIBUNAL NELAMANGALA AND OTHERS reported in 1979 (2) K. L. J. PAGE 330 and submitted that as per the said judgment, the Land Tribunal is bound to issue notice to the interested parties to the land in question. But in the instant case, no notice as such was issued by the Land Tribunal. ( 6 ) FURTHER, he has placed reliance on the judgment of this court in the case of YAMUNAPPA vs DEPUTY COMMISSIONER DAVANAGERE DISTRICT AND JOTHERS reported in 2001 (4) K. C. C. R. 2696 and submitted that the Division Bench of this court has held that: where the order itself appears to be prima facie wrong and is manifestly unjust to the party, even a gross delay of 17 years in filing the appeal was condoned. Further, he submitted that in the aforesaid case, it was held that; notice of the proceedings for cancellation of grant was served on grandmother who was illiterate and died shortly after such service. Further, he submitted that in the aforesaid case, it was held that; notice of the proceedings for cancellation of grant was served on grandmother who was illiterate and died shortly after such service. Grand son took up the whole issue when possession was sought to be disturbed. Dismissal of writ petition on the sole ground of delay was held to be wrong. Therefore, he submitted that the impugned order passed by the 1st respondent is liable to be set aside. ( 7 ) PER contra, the learned Government Advocate for R1 and 2, interalia, contended and justified the impugned order passed by the Land Tribunal. He vehemently submitted that the writ petition filed by the petitioner is liable to be dismissed on the ground of delay and laches. He pointed out that in Form No. 7 filed by the predecessor of Respondents 3 to 16, the name of the owner of the land was shown as vaman S/o Narayana Kulkarni. Therefore, the Land Tribunal has issued notice to the land owner mentioned in Form No. 7 who has appeared before the Land Tribunal. The Land Tribunal, after recording the statement of land owner one Sri Vaman s/o Narayana Kulkarni and the predecessors of R3 to 16 and after considering both oral and documentary evidence, has passed the order granting occupancy rights in favour of R3 to 16. Therefore, he submitted that the petitioner has not made out any prima facie case to interfere with the impugned order passed by the 1st respondent Land Tribunal. Hence, the writ petition is liable to be rejected on merits as also on the ground of delay and laches. ( 8 ) I have perused the impugned order carefully, reevaluated the entire materials available on record with the assistance of the learned counsel for both parties. ( 9 ) IT is not in dispute that the predecessors of R3 to 16 filed Form No. 7 for grant of occupancy rights in respect of Sy. No. 89 measuring 41 acres 05 guntas situated at Chikkaasangi village, Basavana Bagewadi Tq. Bijapur District on 28. 10. 1974 before the Land Tribunal. the Land Tribunal after hearing the predecessors of the R3 to 16 and the land owner Sri. No. 89 measuring 41 acres 05 guntas situated at Chikkaasangi village, Basavana Bagewadi Tq. Bijapur District on 28. 10. 1974 before the Land Tribunal. the Land Tribunal after hearing the predecessors of the R3 to 16 and the land owner Sri. Vaman S/o Narayana Kulkarni, considering the materials on record and also after conducting enquiry as enunciated under the relevant provisions of the Act, granted occupancy rights in favour of the predecessors of R3 to 16 by its order dated 23. 6. 1976. I do not find any error of law in the impugned order passed by the Land Tribunal. Therefore, the petitioner has not made out any prima facie case to interfere with the impugned order passed by the Land Tribunal. As submitted by the learned counsel for the petitioner that, petitioner being the owner of the land in question, his elder brother is not entitled to represent on behalf of the petitioner before the Land Tribunal and no notice as such was issued to the petitioner before passing the orders by the Land Tribunal, on the basis of the statement made by his brother on his behalf on the ground that land in question is a joint family property. To substantiate his contention, he has placed reliance on the judgment of this court in the case of ANJANAPPA as stated supra, wherein, this court has held that notice is mandatory to be issued to the interested persons. It is significant to note that the said law laid down by this court in the case of ANJANAPPA as stated supra, has no bearing on the facts and circumstances of the case. Wherein, this court has held that: a combined reading of S. 48 A (2) and R. 19 would make it abundantly clear that the Legislature intended an effective mode of service of the notice to the parties interested in the land in respect of which the claim for occupancy right is made. In addition to the publication of a public notice issued, of individual notices to the persons mentioned in the application and also to such others as may appear to the Tribunal to be interested in the land. ( 10 ) IN the instant case, the petitioner has not produced any iota of documents to show that the land in question is the joint family property and he is entitled for notice. ( 10 ) IN the instant case, the petitioner has not produced any iota of documents to show that the land in question is the joint family property and he is entitled for notice. The petitioner has not substantiated his claim that as on the date of filing of form No. 7 or as on the date of passing of the order by the Land Tribunal his name is entered in the revenue records as the owner to the half of the property in question. Therefore this court has rightly held in ANJANAPPAs case that: individual notices shall be issued to the persons whose name has been shown in the application. In the instant case, the notice was issued to the land owner who has been notified in Form No. 7 filed by the predecessor of R3 to 16. Therefore, the reliance placed by the learned counsel for the petitioner has no bearing on the facts and circumstances of the present case. Hence, the said submission is liable to be rejected. ( 11 ) FURTHER he vehemently submitted that there is no delay in filing the petition from the date of the knowledge on the ground that no notice was issued to the petitioner. Therefore, the question of delay in filing the writ petition does not arise. Even other wise also, in view of the law laid down by the Division Bench of this court in the case of YAMUNAPPA vs DEPUTY COMMISSIONER, DAVANAGERE DISTRICT AND OTHERS wherein this court held that notice of the proceedings for cancellation of grant was served on grandmother who was illiterate and died shortly after such service. Grandson took up the whole issue when possession was sought to be disturbed. Dismissal of writ petition on the ground of delay was held to be wrong. The facts and circumstances of the above case is entirely different from the facts and circumstances of the present case, as notice was issued to the brother of the petitioner respondent No. 17 - Vaman S/o Narayan Kulkarni who himself has participated in the proceedings. It is not the case of the petitioner that he is an illiterate, ignorant rustic villager and does not know the order passed by the Land Tribunal. It is not the case of the petitioner that he is an illiterate, ignorant rustic villager and does not know the order passed by the Land Tribunal. Therefore, I am of the view that the law laid down by this court in the aforesaid judgment is not applicable to the facts and circumstances of the case. Hence, the submission of the learned counsel for the petitioner is liable to be rejected. ( 12 ) YET another reason the writ petition filed by the petitioner is liable to be rejected at threshold is on the ground of delay and laches. The impugned order was passed as early as on 23. 6. 1976 and this writ petition is presented on 12. 11. 2002. There is an inordinate delay of more than three decades which has not been explained by the petitioner by assigning any convincing reasons for condoning the delay, except stating that the petitioner came to know about the order passed by the Land Tribunal in October 2002 when the respondents 3 to 16 tried to interfere with the petitioners peaceful possession and enjoyment of the land. Immediately thereafter he has filed this writ petition. Hence, there is some delay in filing the writ petition. The explanation offered by the petitioner is not satisfactory. No much credibility can be given to the same, as he has not explained the delay in a very convincing manner. It is the duty cast on the petitioner to explain each days delay in filing the writ petition as held by the Apex court and this court in host of judgments. Therefore, in my considered view, the writ petition is liable to be dismissed on the ground of delay and laches. ( 13 ) HAVING regard to the facts and circumstances of the case as enumerated above and having regard to the factual and legal aspect of the matter, I do not find any justification to interfere with the impugned order passed by the Land Tribunal at this belated stage. ( 14 ) ACCORDINGLY, the writ petition is dismissed. The Government Advocate is permitted to file memo of appearance within two weeks from today. --- *** --- .