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2014 DIGILAW 1024 (KAR)

SANTHOSH v. RAI VS ANTONY SALDHANA

2014-11-27

B.V.NAGARATHNA

body2014
ORDER Petitioner has assailed order dated 12.06.1981 passed in proceedings No. LRT (5) 1534/77-78 by the respondent No.4 - Land Tribunal, Mangalore, D.K. District, (Annexure-A to the writ petition). By that order occupancy rights have been granted to applicant one Dooja Saldhana, ie., father of the respondent No.1 to 3 herein. 2. The relevant facts of the case are, that on the amendment of the Karnataka Land Reforms Act, 1961, one Dooja Saladanha has filed Form No.7 seeking grant of occupancy rights of various survey numbers, the details of which are mentioned in Annexure-A to the writ petition, impugned order dated 12.06.1981. The claim was made as against one Smt. Ramamba W/o L.N.Rai. By the impugned order dated 12.06.1981, the claim made by the Dooja Saladanha had been granted. That order is assailed in this writ petition by L.N.Rai’s son. 3. I have heard the learned counsel for petitioner and learned Government Pleader appearing for respondent No.4 and 5. Respondent No.1 to 3 are served and are unrepresented. 4. During the course of submission, the learned counsel for petitioner stated that there is no delay in filing the writ petition as because when the impugned order was passed Smt. Ramamba was dead and her legal heirs were not brought on record. It was, therefore, contended that impugned order is a nullity and is in violation of principles of natural justice. 5. I have considered the submission in light of the material on record and perused the impugned order as well as the original records, which has been made available by the learned Government Pleader, appearing for respondent No.4 and 5. 6. It is noted from the impugned order dated 12.06.1981 that Smt. Ramamba, against whom application in Form No.7 was filed, had during the pendency of the proceedings, died. But her legal heir was shown as B.L.N.Rai, who is none other than her husband. On perusal of the original record, it is noted that one Rachika Rai had accepted notice served to the land owner on 27.04.1981. In fact, shara states which states that notice has been served. The impugned order categorically records that although service of notice has been effected, there has been no appearance on behalf of the land owner and neither any statement is filed. Therefore, the contention that order was against a dead person and therefore, the impugned order is a nullity, cannot be accepted. 7. The impugned order categorically records that although service of notice has been effected, there has been no appearance on behalf of the land owner and neither any statement is filed. Therefore, the contention that order was against a dead person and therefore, the impugned order is a nullity, cannot be accepted. 7. That apart, father of the petitioner, ie., B.L.N.Rai, who is none other than husband of Smt. Ramamba, was arrayed as respondent before Land Tribunal, after service of notice. During his life time he has not assailed that order. Petitioner has assailed the impugned order after a period of 32 years. The writ petition has to be dismissed on the ground of delay and latches and being a speculative exercise. 8. 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 Co-op 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. 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. (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. 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 ]. 9. The aforesaid decisions are squarely applicable to the instant case. 10. Accordingly, the writ petition is dismissed on the ground of delay and latches.