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2014 DIGILAW 1034 (KAR)

VASANTHARAMA SHETTY v. STATE OF KARNATAKA

2014-12-02

B.V.NAGARATHNA

body2014
ORDER Petitioner has assailed order dated 27.1.1987 made in proceedings in No.LRT.2764/7879 by the second respondent – Land Tribunal, Mangalore Taluk, Mangalore, D.K. District. 2. The facts in a nutshell are that Respondent No.3 had on the enforcement of Karnataka Land Reform (Amendment) Act, 1974 filed Form No.7 seeking grant of occupancy rights in respect of 11 items of land. The controversy in this writ petition is only with regard to land bearing Sy.No.24/3 measuring 24 cents, (which, hereinafter would referred to as the ‘land in question’). The Land Tribunal by impugned order dated 27.1.1987 granted occupancy rights to respondent No.3 in respect of the lands that she had sought including the land in question. That order is assailed by the petitioner. 3. I have heard the learned Counsel for the petitioner; learned Counsel for Respondent No.3 and learned HCGP for Respondents No.1 and 2, who has also made available the original record. 4. I have perused the materials on record as well as the original record. 5. Learned counsel for the petitioner submits that the petitioner has no grievance with regard to grant of occupancy rights of ten items of land, which was claimed by the third respondent. But as far as the land in question is concerned, that piece of land belonged to the petitioner and the third respondent without arraying the petitioner as a party before the Tribunal sought grant of occupancy rights of the land in question fraudulently. He contended the petitioner’s father succeeded to the land in question under a partition and that the extent of land is included in the patta book, which is in the name of petitioner’s father, copy of which is produced at Annexure ‘P’ and that after the death of petitioner’s father, the name of the petitioner’s mother was mutated in the revenue records and after the demise of the petitioner’s mother when the petitioner sought for an entry of his name in the revenue records, he became aware of the impugned order and therefore he has assailed the same. That there is no delay in filing the writ petition and therefore the matter requires consideration, is the submission of the learned Counsel for the petitioner. 6. Per contra, learned Counsel for Respondent No.3 would submit that, this is not first time that the order has been passed by the Land Tribunal on the application made by respondent No.3. That there is no delay in filing the writ petition and therefore the matter requires consideration, is the submission of the learned Counsel for the petitioner. 6. Per contra, learned Counsel for Respondent No.3 would submit that, this is not first time that the order has been passed by the Land Tribunal on the application made by respondent No.3. Earlier on 26.9.1979, order was passed granting occupancy rights to the third respondent. That order was challenged by respondent No.3 before the Tribunal, who was the true owner of the land in question before this Court in W.P.No.8075/1986. This Court had remanded the matter to the Land Tribunal for a reconsideration. The Land Tribunal thereafter passed order dated 27.1.1987 once again granting occupancy rights to respondent No.3. That order was challenged by the legal representatives of Abbakka Hengsu, who was arrayed as respondent No.2 before the Tribunal. In W.P.No.29245/1991, petitioners therein did not take steps to serve the third respondent herein and that writ petition was dismissed for non prosecution on 16.11.2000. The petitioners therein did not take steps to get the said writ petition restored and that when proceedings were pending for the last 35 years or more, petitioner claims ignorance of those proceedings. He also contended that petitioner is a stranger to the proceedings before the Land Tribunal and has no locus standi to challenge the impugned order and secondly the writ petition has to be dismissed on the ground of delay and latches. 7. Learned HCGP, who has made available the original records also submitted that the writ petition would have to be dismissed on the ground of delay. 8. Having heard learned Counsel for the parties and after perusing the materials on record, it is noted that petitioner has not been able to produce any document of title or any other document of contemporaneous nature to show that petitioner’s father had inherited the land in question or the said land had fallen to his share at a partition. Merely an entry in the patta book would not confer title on the petitioner or his father. That apart, petitioner has not even arrayed respondents before the Tribunal as parties in this writ petition. Merely an entry in the patta book would not confer title on the petitioner or his father. That apart, petitioner has not even arrayed respondents before the Tribunal as parties in this writ petition. If they had been arrayed as parties herein possibly they would have asserted that the land in question was in their ownership and that they have been in possession of it subsequent to the order of the Land Tribunal, which was passed in the year 1987. Infact, respondents before the Land Tribunal, who challenged the impugned order in W.P.No.29254/1991 have not prosecuted the writ petition in right earnest and that writ petition is dismissed for non prosecution on 16.11.2000. 9. In the absence of the petitioner establishing his right to the land in question and there being long delay in filing this writ petition, the same would have to be dismissed on the ground of locus standi as well as on the ground of delay and latches. Even assuming for a moment that the petitioner has a right to the land in question, the fact that 26 years have lapsed since the order of the Tribunal and the petitioner is not aware of those orders and as is ignorant of it cannot be believed as these lands in question is situated in Kannur Village and therefore, the petitioner who also resides in the same village would definitely have had knowledge about the cultivation of the land by the third respondent as well as about issuance of Form No.10. Therefore, the writ petition would have to be dismissed on the ground of delay and latches by placing reliance on judgments of the Hon’ble Supreme Court. 10. 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. 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 latches 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 latches. (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 latches 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 latches 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 latches 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. 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 latches 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 ]. The said decisions are squarely applicable to the facts of the present case. 11. In the result, the writ petition is dismissed on the ground of delay and latches.