Jainabi Mahammedusman Makandar v. State Of Karnataka
2020-06-11
SACHIN SHANKAR MAGADUM
body2020
DigiLaw.ai
JUDGMENT Sachin Shankar Magadum, J. - The top noted writ petition is filed by the landlord questioning the order of the 2nd respondent land Tribunal, Chikodi dated 06.06.1981 wherein occupancy rights have been confirmed to the ancestors of the respondent Nos. 4 to 10 in respect of agricultural land bearing RS.No.413 measuring 3 A 31 and RS.No.416 measuring 10 A 32 G both situated within the village limits of Hirekudi taluk Chikodi. 2. Case of the petitioners is that the original applicant Aminoddin S/o. Imamsab Bagwan claiming to be the tenant of petition lands in question filed Form No.7 seeking grant of occupancy right in respect of petition lands. 3. Grievance of the petitioners before this Court is that said application is filed against the minors. A specific contention is also made at para 4 of the writ petition that Abdul Khadar Mohammed Gous Makandar, who was opponent No.1 before the 2nd respondent land Tribunal, died on 10.06.1975. 4. It is the case of the petitioners before this Court that father of petitioner No.3 and ancestors of other petitioners were under bona fide belief that the matter is still pending before the land Tribunal for consideration. It is alleged in para 6 of the writ petition that neither the petitioners nor their ancestors have received any communication/notice in regard to date of hearing of the matter. At para No.7 of the writ petition, an averment is made that the 3rd petitioner recently made an inquiry in the office of the 2nd respondent land Tribunal, Chikodi regarding progress of the matter and it was only in the last week of January 2018, when petitioner No.3 verified records of rights, he was shocked to note that the names of respondent Nos. 4 to 10 was appearing in the records of rights. It is only then the petitioners rushed to the land Tribunal, Chikodi and on enquiry found that there was an order in favour of ancestors of respondent Nos.4 to 10 wherein the 2nd respondent land Tribunal has confirmed occupancy right in respect of petition lands. At para 7 of the writ petition a further contention is taken by the petitioners that, thus, applied for certified copy of the order sheet, Form Nos.7 to 10 and also certified copy of the order passed by the land Tribunal.
At para 7 of the writ petition a further contention is taken by the petitioners that, thus, applied for certified copy of the order sheet, Form Nos.7 to 10 and also certified copy of the order passed by the land Tribunal. It is stated at para 7 of the writ petition that they came to know about the order under challenge only on 29.01.2018. 5. Heard the counsel for the petitioners and AGA for respondent Nos. 1 and 2. 6. On perusal of the material on record, it is forthcoming that the 2nd respondent land Tribunal has confirmed occupancy right in favour of original applicant namely Aminoddin S/o. Imamsab Bagwan by order dated 06.06.1981. The jurisdictional Tahasildar pursuant to grant of occupancy right has issued Form No.10 on 01.08.1981. 7. Counsel for the petitioners would fairly submit that pursuant to grant of occupancy right, the original applicant name was duly mutated to the records of rights pertaining to the petition lands. 8. The present petitioners have approached this Court questioning the order of the land Tribunal dated 06.06.1981. There is a delay of 39 years. It appears that petitioners/landlords have made feeble attempt in approaching this Court. Though, there is an inordinate delay of 39 years, there are absolutely no averments offering an explanation as to why there is an inordinate delay in approaching this Court. Though specific averments are forthcoming in para 7 of the writ petition that it was only last week of January 2018 when they verified records of rights, they came to know about passing of the impugned order cannot be accepted. After grant of occupancy right, the applicant name was duly mutated to the revenue records. In this back ground, the petitioners landlords cannot claim that they had absolutely no knowledge. Further the averments at para 7 of the writ petition, if meticulously examined, the petitioners are claiming that they were awaiting for service of notice from the land Tribunal, Chikodi. This pre supposes the petitioners/landlords had knowledge about the claim made by the original applicant before the 2nd respondent land Tribunal, Chikodi. 9. The contours of area of discretion of the Courts in the matter of condonation of delay in approaching superior Courts are set out in number of pronouncements of the Hon'ble Apex Court.
This pre supposes the petitioners/landlords had knowledge about the claim made by the original applicant before the 2nd respondent land Tribunal, Chikodi. 9. The contours of area of discretion of the Courts in the matter of condonation of delay in approaching superior Courts are set out in number of pronouncements of the Hon'ble Apex Court. The Courts while examining inordinate delay have to take into consideration the negligence, deliberate or gross inaction or lack of bonafide on the part of the party. The Courts have to bear in mind and also consider the reasons as to why opposite side should be exposed to a time barred appeal or writ petition in a given case. In the matter of condonation of delay and laches, the well accepted position is that the accrued right of a opposite party cannot be lightly dealt with. The Hon'ble Apex Court in catena of judgments has observed that cumulative effect of delay and laches should not be ignored by the Courts more particularly, when the party has approached the Court after inordinate delay. In the case of State of M.P. and Others Vs Nandlal Jaiswal and Others, (1986) 4 SCC 566 , the Apex Court at paragraph 24 held as follows: "It is well settled that the power of High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic." 10. The Apex Court in the above said case has held that, if there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. I am of the view that, evolution of this rule of laches or delay is premised upon a number of factors and this Court is of the view that the petitioner cannot be permitted to raise belated resort to an extraordinary remedy under the writ jurisdiction which would ultimately affect the respondent/tenants valuable rights which have been crystallized way back in 1981 and if intervened, it may have the effect of inflicting not only hardship and inconvenience but also injustice on the respondents. 11.
11. This Court has to take judicial note of the material facts that occupancy rights were granted to the ancestors of the respondent Nos. 4 to 10 way back in the year 1981. The original applicant asserting absolute ownership enjoyed petition lands as absolute owner and after his death the respondent Nos. 4 to 10 being the legal representative have succeeded to petition lands and are enjoying the petition lands as absolute owners. Rights of the parties have crystallized way back in 1981. Lot of water has flown and hence, at this stage, this Court cannot come to the aid of the petitioners and the grievance of the petitioners cannot be entertained at such belated stage. No reasons are forthcoming for having failed to challenge the order of the 2nd respondent land Tribunal, Chikodi. It is evident that the ancestors of petitioners who are landlords have not taken pain to contest the proceedings. Having failed to contest the proceedings, it is to be presumed that the original landlords have accepted the order passed by the 2nd respondent land Tribunal, Chikodi as such the legal representatives of the original landlords cannot now come before this Court and contend that order under challenge is without enquiry and without giving notice to the petitioners. All these material aspects cannot be looked into since there is an inordinate delay in approaching this court. 12. For the reasons stated supra, the writ petition is devoid of merits and the same is liable to be dismissed. Accordingly, the writ petition is dismissed. No order as to cost.