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2009 DIGILAW 162 (KAR)

Saraswathi Shetty v. Lakshmi @ Bommi

2009-02-25

ANAND BYRAREDDY

body2009
Judgment :- Ananda Byrareddy, J. Heard the counsel for the petitioner. It is contended that the petitioner is the owner of immovable property in survey no. 293-1 A, measuring 74 cents and that it is punj a land. It is claimed that it was granted to the petitioner on 24.12.1957. It is contended that one Kinj anna Moolya was a tenant under the petitioner in respect of survey no.180-10B, measuring 4 cents, 180-13 measuring 34 cents, 180-18A, measuring 29 cents, 180-27, measuring 1 acre 89 cents and 180-24A measuring 4 cents. 2. It transpires that the said Moolya had filed an application in Form No.7, in respect of the above lands, while including the land in survey no.293-1A, measuring 30, in respect of which, he was not at all a tenant. The petitioner would emphasize that it was not leased to the said Moolya. The land was not even fit for cultivation. The condition mentioned in the Grant order, in favour of the petitioner, itself would indicate that it was not fit for cultivation. However, the Tribunal is said to have granted occupancy rights, in favour of the said Moolya, in respect of survey no 293-1 A2, as well. The husband of the petitioner had represented the petitioner before the Tribunal and opposed the claim in respect of the said survey number. inspite of which, the same has been granted by its order dated 24.12.2007, in TNC No.4249-74-75. It is this which is under challenge. 3. It is contended that the inordinate delay in challenging the petition, was that the petitioner's husband was prosecuting the matter on her behalf Since the petitioner had no objection in grant of occupancy rights in respect of other lands, the Tribunal has proceeded on an erroneous presumption that there was no objection in respect of the said survey no.293-1 A2 also. Further, the order of the Tribunal was never communicated to the petitioner. The petitioner and her husband remained unaware of the grant of occupancy rights in respect of survey no.293 -1 A2. The petitioner suddenly realized that the same was also the subject matter of the grant of occupancy rights only in the month of October 2008, when respondents -2 to 8 tried to alienate the same to third parties for non-agricultural purpose. The petitioner suddenly realized that the same was also the subject matter of the grant of occupancy rights only in the month of October 2008, when respondents -2 to 8 tried to alienate the same to third parties for non-agricultural purpose. It is thereafter, that the petitioner has obtained a certified copy of the order of the Tribunal and has filed the present writ petition. 4. The counsel for the petitioner would seek to place reliance on a decision of the Supreme Court in the case of Tridipkumar Dingal And Others Vs State of West Bengal And Others 2009 KIR page 768 and in particular would seek to place reliance on para -57 and 58, which reads as follows: "57. If the petitioner wants to invoke the jurisdiction of a writ court, he should come to the Court at the earliest reasonable possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the right of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai, Moon Mills Ltd. v. Industrial Court and Bhoop Singh v. Union of India). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H. B. Munshi, Durga Prashad v. Chief Controller of Imports and Exports and Rabindranath Bose v. Union of India). 58. There is no upper limit and there is no lower limit as to when a person can approach a Court. The question is one of discretion and has to be decided on the basis of facts before the Court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. " And therefore would submit that the petition be considered. 5. Having regard to the above facts, the general principle that is reiterated in the judgment of the Supreme Court as regards stale claims being exhumed would militate against the petitioner. " And therefore would submit that the petition be considered. 5. Having regard to the above facts, the general principle that is reiterated in the judgment of the Supreme Court as regards stale claims being exhumed would militate against the petitioner. The observation of the Supreme Court that there is no upper limit and there is no lower limit as to when a person can approach a Court cannot be cited in isolation and would have to be viewed in the overall circumstances of the case. The admitted circumstance that there were several items of land, which were the subject matter of the application and occupancy rights having been granted without any objection from the petitioner, if accepted, the further contention that the notice of the order was not served on the petitioner cannot be readily accepted. This explanation put forth in seeking to challenge an order of the Tribunal after 32 years, is not tenable and cannot be entertained. 6. As observed by the learned author S.M. Seervai, in his Constitutional Law of India, Fourth Edition, Volume – I at page I-vi ADDENDA, para– 8.53AA as under would disentitle the petitioner in presenting this petition: "8.53AA – The grant of a Writ is discretionary. , And although Art. 32 confers a fimdamental right by providing remedies for the enforcement of fundamental rights by empowering the Sup. U. to issue appropriate writs, our Sup. Ct. has held that rules of Evidence, rules of Procedure, Statutes of Limitation in civil and even in criminal cases, and the doctrine of res-judicata, all apply to the enforcement of fundamental rights as they do to the enforcement of other rights. Part III of our Constitution (Fundamental Rights) says nothing about these matters because it assumes a country governed by law Father the conduct of a petitioner may be such that the interest of/us/ice would not be promoted by granting any writ, and thereupon or writ will be refused. This was laid down by the Sup. Ct. in Tilokchand Motichand v H. B. Ivlunshi (1969) 2 S C. R. 824, (70) A. Supreme Court. 898, by a majority of 4:1, Ilegde J. dissenting. In Rabindra Nath v. Union another Constitution Bench, (70) A.SC. 470, of 5 Judges was asked to reconsider the majority judgments in Tilokchand Motichand’s Case. This was laid down by the Sup. Ct. in Tilokchand Motichand v H. B. Ivlunshi (1969) 2 S C. R. 824, (70) A. Supreme Court. 898, by a majority of 4:1, Ilegde J. dissenting. In Rabindra Nath v. Union another Constitution Bench, (70) A.SC. 470, of 5 Judges was asked to reconsider the majority judgments in Tilokchand Motichand’s Case. The Bench, after care/idly considering the matter afresh, affirmed the majority judgments in Tilokchand Motichand'' Case and held that no relief should be given to the petitioner who approaches the Court after an inordinate delay. The Court added that although Art. 32 was itself a guaranteed .fundamental right, "it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions field after inordinate delay. Having regard to this legal position the petition is rejected.