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2006 DIGILAW 301 (KAR)

GOVIND KRISHNARAO DESHPANDE v. LAND TRIBUNAL

2006-03-22

R.GURURAJAN

body2006
GURURAJAN, J. ( 1 ) THE petitioner-Govind Krishnarao is knocking the doors of this Court for the purpose of setting aside the order of the Land Tribunal, Dharwad dated 26-4-1979 in this Writ Petition. Sy. No. 54 measures 3 acres 6 guntas. It is situated in Lakamanahalli Village, Dharwad Taluk. The said land was taken by the Court of wards when the petitioner was a minor due to the insanity of the father of the petitioner. The District Judge, Dharwad appointed the Deputy Commissioner as court of wards. The property was under the management of the Court of wards. Thereafter, the court discharged the management of wards. ( 2 ) THE 3rd respondent filed Form No. 7 seeking occupancy rights. In Form No. 7, he has shown one Sri. Ananth Venkatesh Deshpande, Ganapathrao V Deshpande and the petitioner as the landlord in respect of Sy. No. 24. Sri Ganapath Rao and Anath Venkatesh Deshpande are the brothers of the petitioner's grandfather Sri. Anantrao Venkatesh Deshpande had died on 30-4- 1958 Sri Ganapath Rao Venkatarao Deshpande died on 13-8-1969. Dead persons are shown as landlords. The petitioner was also impleaded as a party in the said proceedings. According to the petitioner, he was not notified and without notification, an order was passed ordering occupancy rights in favour of the contesting respondent. The petitioner states that he was unaware of the orders. The petitioner came to know of this order only when the 3rd respondent objected to the proceedings being continued in respect of the petition lands in terms of the averments made in para 5. The petitioner wants an interference on the facts of this case. ( 3 ) NOTICE was issued. The contesting respondent entered appearance. Records are made available to the Court. Sri. Ravi Shankar Shastry, Learned Counsel argues that there is violation of rules of natural justice in the case on hand. He points out that no notice was served and even otherwise the proceedings are in violation of well accepted rules of natural justice. He wants an opportunity. ( 4 ) PER contra, Sri Vivek Mehta, Learned Counsel says that factually the petitioner did receive notice and that therefore this Court should not interfere in a matter like this. He further argues that the Judgment comes in the way of the petitioner's request. He wants an opportunity. ( 4 ) PER contra, Sri Vivek Mehta, Learned Counsel says that factually the petitioner did receive notice and that therefore this Court should not interfere in a matter like this. He further argues that the Judgment comes in the way of the petitioner's request. He relies on the judgment of the supreme Court in 1996 (6) SCC 445 . ( 5 ) AFTER hearing, I have carefully perused the material on record. The petitioner specifically has pleaded that he was served with no notice by the Tribunal. The same was disputed. In the light of the dispute, I sought for the original records and the original records are made available to the Court. From the original records, it is seen that the cover sent to the petitioner returned unserved in terms of the proceedings. Therefore, the contention of service of notice of the petitioner is totally untenable. The petitioner is deprived of an opportunity by the Tribunal in the matter of occupancy rights in the case on hand. I am satisfied that the petitioner is right in his submission with regard to no notice on the facts of this case. I have also gone through the order of the Land Tribunal. It is seen that two dead persons are made parties. Evidence was rendered by the tenant but there was no cross-examination and possibly there could be no cross- examination by a dead person and a person who has not received notice. The order to say the least in the given circumstances certainly requires interference as otherwise injustice would be starting all the time to come. In these circumstances, I deem it proper to set aside the impugned order on the peculiar facts and circumstances of this case. ( 6 ) IN so far as delay argument is concerned, I am of the view that when judicial conscious is pricking on account of irregularity and illegality of an order, the Court cannot shut its eyes and reject the petition on the ground of delay only. There is some explanation available with regard to delay. But the said explanation is not to my satisfaction but even then, in a case like this, if the petitioner is allowed, no injustice is caused to the respondent. Occupancy rights proceedings are sacred. Orders are to be obtained in a fair manner. There is some explanation available with regard to delay. But the said explanation is not to my satisfaction but even then, in a case like this, if the petitioner is allowed, no injustice is caused to the respondent. Occupancy rights proceedings are sacred. Orders are to be obtained in a fair manner. Orders cannot be obtained behind the back of the owner. Orders are not to be obtained against dead persons. Taking into consideration all these aspects of the matter, I am of the view that delay cannot come in the way of a relief in a matter like this. ( 7 ) IN so far as Judgment of the Supreme Court is concerned, the Supreme Court itself has stated in State of Rajasthan vs D. R. Laxmi ( 1996 (6) SCC 445 ) that"the order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. " ( 8 ) IN the case on hand, if the discretion is not exercised on the facts of this case, it would be unreasonable on the part of the Court in refusing justice. Justice demands an interference in the case on hand. ( 9 ) IN the result, this petition is accepted. The impugned order is set aside. Matter is remitted back for re-decision. Parties are directed to appear without waiting for any notice, what so ever, on 25-5-2006. Learned Counsel are requested to inform their respective clients with regard to the postings of the case on 25-5-2006. Liberty is reserved to the tenant to bring on record, the lrs of the deceased respondents. Further liberty is reserved to both the parties to lead additional evidence/documents, if the parties so desire before the Land Tribunal. The Land tribunal is directed to hear the parties, consider the material already available on record and the proposed materials to be filed in terms of this order and thereafter proceed to pass a reasoned order in accordance with law, without in any way being influenced by the earlier order. The Land tribunal is directed to hear the parties, consider the material already available on record and the proposed materials to be filed in terms of this order and thereafter proceed to pass a reasoned order in accordance with law, without in any way being influenced by the earlier order. The Tribunal is directed to complete the proceedings within six months from 25-5-2006. ( 10 ) THE tenant is made to contest this case after several long years. Therefore, not-withstanding the irregularity or illegality in the proceedings, I deem it proper to compensate the tenant by way of cost of Rs. 1,000/- to be made over to Sri. Vivek Mehta, Learned Counsel appearing for the respondent towards legal expenses. Parties are directed to maintain status-quo in terms of this order till a final order is passed by the Tribunal in terms of this order. ( 11 ) ORDERED accordingly. No costs. ( 12 ) SRI Ramesh B. Aneppanavar, Learned Government Advocate assures that the Land tribunal will be constituted shortly. He is given four weeks time to file his memo of appearance. ( 13 ) THE office is to send the records forthwith. --- *** --- .