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2022 DIGILAW 1591 (KAR)

H. ramachandraiah v. State of Karnataka

2022-12-15

KRISHNA S.DIXIT

body2022
JUDGMENT Krishna S.Dixit, J. - Petitioner is knocking at the doors of Writ Court for assailing the Land Tribunal order dated 27.05.1987 a copy whereof avails at Annexure-E whereby occupancy rights have been registered concerning the land admeasuring 07 Acres & 20 Guntas in Sy. Nos. 42 & 43 of Vodeyarahalli Village, Bangalore North Taluka, in favour of 4th Respondent- Sri Jayaramaiah. 2. Learned counsel for the Petitioner vehemently argues that: at no point of time, the 4th Respondent had cultivated the land either as tenant or otherwise; occupancy has been granted on the strength of fabricated documents; entries in the Revenue Records do not support the tenancy; Petitioner had no notice of occupancy proceedings; 1978 Sale Deed under which, the 4th Respondent bought the adjoining land does not mention anything about he being the tenant of the Petition land; Petitioner and his father being 'illiterate & rustic villagers', had no knowledge of the impugned order and on coming to know of the same, by virtue of Caveat entered by the 4th Respondent in the Civil Court, he has approached this Court. Thus, there is no delay & latches that come in the way of invalidation of the impugned order. 3. Learned AGA appearing for the official Respondents and the learned advocate appearing for the 4th Respondent - Tenant oppose the Writ Petition with equal vehemence making submission in support of the impugned order and the reasons on which it has been structured. The 4th Respondent has filed the Statement of Objections producing a wealth of material by way of Annexures. They deny the explanation offered by the Petitioner for the delay & latches of about 35 years. The advocate for 4th Respondent contends: the subject property has changed hands by registered Sale Deeds and the buyers thereof have not been made parties; the entire land except 01 Acre & 38 Guntas has already been developed as a layout and sold to others; Petitioner's father was before this Court as a Respondent in 4th Respondent's W.P.No.23482/1981, disposed off on 23.02.1983 whereby the grant of occupancy having been set aside, the matter was remanded to the Tribunal. Despite service of notice, the Petitioner's father chose not to participate in the proceedings; the Land Tribunal after weighing the evidentiary material on record has granted occupancy and therefore, the matter does not merit deeper examination in a limited supervisory jurisdiction constitutionally vested under Article 227. So contending, both they seek dismissal of the Writ Petition. 4. Having heard the learned counsel for the parties and having perused the Petition papers, this Court declines indulgence in the matter for the following reasons: A. DELAY & LATCHES OF 35 YEARS AND CONDUCT OF THE PETITIONER: a) The impugned order of the Land Tribunal was made on 27.05.1987 and the Writ Petition has been filed on 21.10.2021. Thus, by a simple arithmetics, there is a long delay of 35 years in invoking the Writ jurisdiction. The submission of learned counsel for the Petitioner that her client and his father 'are illiterate and rustic villagers having no knowledge or notice of the proceedings before Land Tribunal' is very difficult to accept for more than one reason: the father of Petitioner had participated in the tenancy proceedings effectively and he had obtained the order dated 04.07.1999 at the hands of the Tribunal in his favour. This was challenged in W.P.No.23482/1981 by the tenant and Petitioner's father was the 3rd Respondent in the same. He had engaged an advocate and resisted the Writ Petition. However, a Co-ordinate Bench of this Court vide judgment dated 23.02.1983, allowed the Petition, set aside the Land Tribunal order and remanded the matter for consideration afresh. Thereafter, Petitioner's father on service of notice appeared before the Land Tribunal on 02.09.1986 and 30.09.1986 and that his signatures in the proceeding sheet are not disputed. Subsequently, he remained absent consecutively on six hearing dates and therefore, he was placed ex parte. That being the position, Petitioner's plea of absence of notice is a militant lie. A person who participated in the proceedings cannot turn around and contend to the contrary by invoking the ground of opportunity of hearing. b) Petitioner's father Mr. P Hanumanthaiah breathed his last on 03.03.2012 as is evidenced by his Death Extract, a copy whereof is produced by himself at Annexure-F. Thus, he was alive for about 25 years after passing of the impugned order. Form 10 was issued on 20.04.1995 and the entries in the Revenue Records came to be mutated in 1997 or so. P Hanumanthaiah breathed his last on 03.03.2012 as is evidenced by his Death Extract, a copy whereof is produced by himself at Annexure-F. Thus, he was alive for about 25 years after passing of the impugned order. Form 10 was issued on 20.04.1995 and the entries in the Revenue Records came to be mutated in 1997 or so. No explanation is offered as to why Petitioner's father did not chose to challenge the Land Tribunal order. The plea that he had no knowledge or notice of the proceedings is unacceptable, to say the least, he having participated in the proceedings. If father has not chosen to challenge the Land Tribunal order, ordinarily his son also cannot. In matters like this, the right to challenge if any that availed to the father having been waived by conduct, no longer avails to the son, when it is not the specific case of the Petitioner that the subject property was an ancestral land. His father had not raised even a little finger against issuance of Form 10 nor against mutation of entries. Thus the doctrine of constructive waiver comes into play qua the father and therefore, his son i.e., the Petitioner. c) The version of the Petitioner that he came to know of the Land Tribunal order only in the month of June, 2021 when he received a Caveat Petition filed by the 4th Respondent in the Civil Court in a contemplated suit, does not merit acceptance for the reasons stated in Paragraphs (a) & (b) supra. Petitioner does not appear to be trust worthy inasmuch as, he as suppressed in his Petition about the earlier round of litigation in W.P.No.23482/1981 disposed off on 21.02.1983 in which, his father Mr. P Hanumaiah being the 3rd Respondent had suffered a judgment at the hands of this Court. In fact, he had engaged an advocate to defend his case. This apart, the records reflect participation of his father in the tenancy proceedings before the Tribunal even after the remand. A bare perusal of the Land Tribunal order shows the particulars of the Writ Petition and the remand. Despite that, the Writ Petition is silent about the said case. The knowledge of the proceedings which Mr. P Hanumaiah had stands attributed to Petitioner who claims under him. A bare perusal of the Land Tribunal order shows the particulars of the Writ Petition and the remand. Despite that, the Writ Petition is silent about the said case. The knowledge of the proceedings which Mr. P Hanumaiah had stands attributed to Petitioner who claims under him. B. THIRD PARTY INTEREST POST LAND TRIBUNAL ORDER AND THEIR NON-JOINDER: a) As already mentioned above, the Land Tribunal granted occupancy on 27.05.1987; the Form 10 came to be issued on 20.04.1995; the mutation of entries in the Revenue Records was made in 1997. A substantial part of the land has been converted to non-agricultural user under Section 95 of the Karnataka Land Revenue Act, 1964 vide orders dated 12.06.2013 & 18.02.2015. In more than 05 Acres & 20 Guntas, the layout having been developed, sites have been sold by registered Sale Deeds in favour of several persons and a few copies of Sale Deeds have been produced by the 4th Respondent in his Statement of Objections. Several structures have also come up in the land. What remains is only 01 Acre & 38 Guntas as a piece of agricultural land in which crops are being grown by the said Respondent. It is only now the Petitioner has all of a sudden woken up from the deep slumber to lay a challenge to the Land Tribunal order. When third party interest is created in the land, the condonation of delay & latches would cause more injustice to the third parties. Added, the explanation offered for the long delay is too frugal to be accepted, apart from being truncated in the sense that nothing is mentioned about all the developments that have happened after the grant of occupancy. The sages of law have said that the delay defeats equity and the constitutional courts should not come to the aid of sleepy & tardy. b) As already mentioned above, a greater portion of the land having been developed into a layout, sites have been sold already to several persons and what is retained is only less than 02 Acres at the hands of 4th Respondent. The buyers of the sites multiple in number, have not been arrayed as Respondents to the Petition nor any explanation is offered for not arraying them. The buyers of the sites multiple in number, have not been arrayed as Respondents to the Petition nor any explanation is offered for not arraying them. The buyers being proper and necessary parties in the light of RAZIA BEGUM vs SAHEBZADI ANWAR BEGUM, AIR 1958 SC 886 , no relief can be granted to the Petitioner. C. ON MERITS OF THE MATTER: a) There is force in the submission of learned counsel for the 4th Respondent that the land in question was taken on tenancy basis vide Lease Deed dated 10.06.1971; the Spot Mahazar was drawn by the Special Tahsildar as to the possession of the 4th Respondent it is signed by as many as 11 villagers. These documents being part of the record, their certified copies are produced by the said Respondent as Annexures to the Statement of Objections. True it is that the same are not considered by the Tribunal. However, there is no bar for this Court to look into the same in support of the impugned order that was made way back in May, 1987. The Land Tribunal while granting occupancy has heavily banked upon the lease deed dated 19.06.1978 which specifically mentions about the earlier tenancy of 4th Respondent being continued. Though, learned counsel for the Petitioner calls the same fabricated, at this length of time, it is difficult for the Writ Court to undertake a deeper examination of the same, in the fitness of things. The Petitioner could have led evidence and cross-examined the 4th Respondent before the Land Tribunal. In fact, the earlier order of the Land Tribunal was set at naught by a Coordinate Bench on the ground that such an opportunity was not available to the tenant. That being the position, there was absolutely no justification for Petitioner's father to participate in the tenancy proceedings and establish the plea of fabrication. This having not been done, now the Petitioner cannot urge it as a ground for invalidation of the impugned order by invoking S.P.CHENGALVARAYA NAIDU (DEAD) BY L.RS VS. JAGANNATH (DEAD) BY L.RS, AIR 1994 SC 853 . b) The vehement submission of counsel for the Petitioner that the impugned order is signed only by three of the members and therefore, it is liable to be voided in view of Rule 7 of the extant Rules, could have been examined had the petition been presented within a reasonable period. JAGANNATH (DEAD) BY L.RS, AIR 1994 SC 853 . b) The vehement submission of counsel for the Petitioner that the impugned order is signed only by three of the members and therefore, it is liable to be voided in view of Rule 7 of the extant Rules, could have been examined had the petition been presented within a reasonable period. Now 35 years having lapsed since the making of the Land Tribunal order, this court declines to undertake such an examination for the ritualistic purpose, notwithstanding the arguability of this legal aspect in an appropriate case. c) The last submission of learned counsel for the Petitioner that the 4th Respondent had bought the adjoining land from his father Sri.Hanumaiah by a registered sale deed dated 19.6.1978 and it does not mention anything about tenancy of the 4th Respondent, is too feeble an argument to invalidate the order of the Land Tribunal. Why such a contention was not taken up by his father before the Land Tribunal remains unanswered. After the first amendment of 1974 to the 1961 Act, several tenanted lands were hurriedly sold a part of the tenanted lands to the tillers at times for a lesser price than usual so that the same would be more beneficial to the landlords. In many of such sale deeds, nothing is stated about the tenancy of remaining lands. Therefore, the absence of narration about the tenancy in the sale deed of the 4th Respondent does not assume much significance. 5. In the above circumstances, the Writ Petition being devoid of merits, is liable to be dismissed with no costs and accordingly, it is.