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2014 DIGILAW 1023 (KAR)

SANTHOSH v. RAI VS LEGORY SALDHANA

2014-11-27

B.V.NAGARATHNA

body2014
ORDER Petitioner has challenged order dated 06.08.1981 passed in proceeding No. LRT 1535/77-78 by the respondent No.3 – Land Tribunal, Mangalore, D.K. District, (Annexure-A to the writ petition). 2. The relevant facts of the case are, that one Josephin Pinto had filed Form No.7 against the mother of the petitioner Smt. Ramamba W/o L.N.Rai on the amendment of the Karnataka Land Reforms Act, 1974, seeking grant of occupancy rights of various survey numbers. The Land Tribunal by the impugned order dated 06.08.1981 allowed the application filed in Form No.7 by her and granted occupancy rights in respect of survey numbers mentioned in the impugned order. That order is assailed by the petitioner, who is said to be the son of Ramaramba. 3. I have heard learned counsel for petitioner and learned counsel for respondent No.1 and 2 as also learned Government Pleader appearing for respondent No.3 and 4 and perused the material on record. 4. On query from the court with regard to delay in assailing the impugned order, the learned counsel for petitioner stated that petitioner’s mother Smt. Ramaramba, had died during the pendency of the proceedings before the Tribunal and her legal representatives were not brought on record and therefore, the impugned order is a nullity as it is in violation of principles of natural justice. Learned counsel for petitioner further contended that on coming to know about the impugned order petitioner has rushed to this court by filing writ petition and the delay would not be a factor to be taken note while considering the matter on merits. 5. Per contra, learned counsel for respondent No.1 and 2 stated that though petitioner’s mother had died during the pendency of the proceedings, her legal heirs did not appear in the matter before the Land Tribunal despite service of notice and therefore, the petitioner at this point of time cannot plead ignorance of the impugned order. 6. Learned Government Pleader appearing for respondent No.3 and 4 has made available the original record and has stated that Tribunal on noting the fact that Ramaramba had died, had issued notice to her husband B.L.N. Rai and that notice was served on Rasika Rai on 27.04.1981 and LR of Ramarambha appeared before the Tribunal and Tribunal on recording this fact and on consideration of the material on record has granted occupancy rights and that order would not call for any interference. 7. 7. I have considered the submission in light of the material on record and perused the impugned order as well as the original record, which has been made available by the learned Government Pleader appearing for respondent No.3 and 4. 8. In the impugned order, no doubt, petitioner’s mother Ramamba was arrayed as respondent. It is also not in dispute that during the pendency of the proceedings she died and notice was issued in the name of her husband B.L.N.Rai and that notice was accepted by one R.H.Rasika Rai and an endorsement to that effect for having accepted notice dated 27.04.1981 is also perused. The Land Tribunal also records the fact that despite service of notice there is no representation on behalf of Ramaramba and on the basis of the material on record impugned order has been passed. 9. In fact, in W.P. No.22519/2013 filed by the very same petitioner in respect of the order dated 12.06.1981, the very same contentions were taken by the learned counsel for petitioner. On perusal of the original record in that case, it is noted that one R.H.Rashika Rai has accepted notice. In fact, that it is noted on the very same day, ie., on 27.04.1981 that notice was served on her in respect of this proceeding also. Thereafter, neither the petitioner nor his father, who are none other than LRs of Ramaramba took steps to appear before the Land Tribunal. 10. That apart, the impugned order in the instant case is of the year 1981. Petitioner has assailed the impugned order after a lapse of 32 years. It is difficult to believe that the petitioner or his father were unaware of the impugned order. They are residents of Attavar Village. In fact residents of villages would be aware with regard to occupation, possession and cultivation of agricultural lands, particularly when Tribunal has granted occupancy rights. Therefore, the petitioner cannot contend that the impugned order is a nullity as it is in violation of principles of natural justice as there is no service of notice on the LRs of the petitioner’s mother Ramaramba. Therefore, the writ petition would have to be dismissed on the ground of delay and latches and as being a speculative exercise. 11. Therefore, the petitioner cannot contend that the impugned order is a nullity as it is in violation of principles of natural justice as there is no service of notice on the LRs of the petitioner’s mother Ramaramba. Therefore, the writ petition would have to be dismissed on the ground of delay and latches and as being a speculative exercise. 11. In this context, a plethora of decisions of the Hon’ble Supreme Court on the issue regarding delay and as to how a Court of equity exercising jurisdiction under Article 226 of the Constitution cannot extend its hands to such persons who approach the Court after several years can be relied upon. In fact, the Apex Court has held in several decisions that stale claims ought not to be entertained by High Courts exercising writ jurisdiction under Article 226 of the Constitution of India. The recent decisions in that regard are as follows: (a) In a recent decision of the Apex Court reported in 2011 AIR SCW 1332 (State of Orissa & Anr. V/s. Mamata Mohanty) the consideration of an application where delay and laches could be attributed against a person who approaches in a writ petition is discussed by stating that though the Limitation Act, 1963 does not apply to writ jurisdiction, however, the Doctrine of Limitation being based on public policy, the principles enshrined therein are applicable and writ petitions could be dismissed at the initial stage on the ground of delay and laches. (b) In the case of Shankar Coop Housing Society Ltd. V/s. M.Prabhakar & Ors (2011 AIR SCW 3033), the Apex Court at para 53 has given the relevant considerations, in determining whether delay or laches in approaching the writ court under Article 226 of the Constitution of India. The same reads as follows; “53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its owns facts. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its owns facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay.” (c) Similarly, the Apex Court in 2010(4) SCC 532 in the case of SAWARAN LATHA AND OTHERS V/s. STATE OF HARYANA AND OTHERS has held that when the notification under Section 4 of the Land Acquisition Act, 1894 was issued in the year 2001 and the award was passed in the year 2004, writ petitions filed for quashing of the notification in the year 2009 have to be dismissed on the ground of delay as the litigants who dare to abuse the process of the Court in disregard of the law of limitation, delay and laches should not be encouraged. (d) Reference can also be made to another decision of the Apex Court in the case of (1996) 6 SCC 445 STATE OF RAJASTHAN & OTHERS V/s. D.R.LAKSHMI & OTHERS), wherein it has cautioned the High Court not to entertain the writ petitions where there is inordinate delay while exercising jurisdiction under Article 226 of the Constitution of India. (e) Similarly, in the case of The Municipal Council, Ahmednagar & Anr. (e) Similarly, in the case of The Municipal Council, Ahmednagar & Anr. V/s. Shah Hyder Beig & Ors. [( 2002) 2 SCC 48], it has been opined thus: “The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the Writ Court, the rights of the third parties have come into being which should not be allowed to disturb unless there is reasonable explanation for the delay.” (f) In fact in S.S.Balu and others V/s. State of Karnataka [ (2009) 2 SCC 479 ], it has been held that delay defeats equity and that relief can be denied on the ground of delay alone even though relief is granted to other similarly situated persons who approach the courts in time. (g) To a similar effect is the decision of the Hon’ble Supreme Court in Andhra Pradesh Industrial Infrastructure Corporation Ltd. v. Chinthamaneni Narasimha Rao & others [ (2012) 12 SCC 797 ]. 12. The aforesaid decisions are squarely applicable to the instant case. 13. Accordingly, the writ petition is dismissed on the ground of delay and latches.