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H.C. Balakrishna & Others v/s The Land Tribunal, Hosakote, By Its Secretary & Others

    W.P. No. 27077 of 2017 (LR-RES)

    Decided On, 13 March 2018

    At, High Court of Karnataka

    By, THE HONOURABLE MRS. JUSTICE B.V. NAGARATHNA

    For the Petitioners: S. Rupesh Kumar, Advocate. For the Respondents: R1, S. Chandrashekaraiah, HCGP.



Judgment Text

(Prayer: This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order Dated 23.03.1987 passed by R-1 in dispute vide Annx-A etc.)

1. Petitioners have assailed order dated 23/03/1987 passed by first respondent-Land Tribunal, Hosakote in Dispute No.L.R.M (K) U.P.124/1975-76 (Annexure-A) in this writ petition.

2. According to the petitioners, late Chikkamunishamappa, father of the respondent Nos.2 to 5 had filed Form No.7 seeking grant of occupancy rights in respect of 35 guntas and 25 guntas in survey Nos.54 and 51 respectively. Both these lands are situated at Upparahalli Village, Hosakote Taluk, Kasaba Hobli, Bangalore Rural District. According to the petitioners, these lands were in fact purchased by petitioners' late father Chellappa under registered sale deed dated 06/06/1951 and 19/04/1953. Since that date Chellappa has been in possession of the same. That on 06/05/1970 late Chellappa. entered into an agreement (Annexure- D) with one Chikkamunishamappa, appointing Chikkamunishamappa to supervise and to take care of the crops i.e. grapes cultivated in the lands in question. That the proceeds of the yield was to be shared amongst themselves in the ratio of 69% :31%. That on amendment of the Karnataka Land Reforms Act, 1961, Chikkamunishamappa had filed Form No.7 for grant of occupancy rights in respect of the two parcels of land. By the impugned order dated 23/03/1987, the first respondent-Land Tribunal granted occupancy rights in respect of 25 guntas in survey No.51 in favour of Chikkamunishamappa, but rejected his claim in respect of 35 guntas in Survey No.54.

3. At this stage, it may be mentioned that Chikkamunishamappa, had preferred W.P.No.29069/2001 before this court assailing rejection of the claim in respect of 35 guntas in survey No.54. The said writ petition was dismissed by a learned single Judge of this court on 30/05/2008. Being aggr

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ieved by the dismissal of the writ petition, they preferred W.A.No.1283/2008 before the Division Bench of this court, which allowed the appeal and modified the order of the Land Tribunal granting occupancy rights in respect of 35 guntas in survey No.54 and a direction was issued to the Tribunal to confirm the occupancy rights in respect of 35 guntas in survey No.54 of Upparahalli Village.

4. Be that as it may. Petitioners are stated to be the legal representatives of the deceased Chellappa have now preferred this writ petition assailing the very same order of the Tribunal dated 23/03/1987 by which occupancy rights in respect of 25 guntas in survey No.51 had been granted in the name of Chikkamunishamappa. Further, the application has been filed seeking amendment of the writ petition and an additional prayer has been made to review order dated 18/09/2012 passed in W.A.No.1283/2008 (Annexure-M). Therefore, the challenge made to order of the Land Tribunal dated 23/03/1987 is with regard to grant of occupancy rights in respect of 25 guntas in survey No.51 and the additional prayer sought by way of an amendment to the writ petition is with regard to grant of occupancy rights pursuant to the directions of this court in W.A.No.1283/2008 in respect of 35 guntas.

5. That Chikkamunishamappa, the owner of the land in question subsequently passed away. Chikkamunishamappa did not assail the impugned order dated 23/03/1987 during his lifetime. That petitioners were not aware of the said order passed against their father. Learned counsel for petitioners submits that petitioners herein were not arrayed as parties in W.P.No.29069/2001 or in W.A. No.1283/2008 which were filed by the legal representatives of the deceased Chikkamunishamappa, wherein they assailed rejection of their fathers' claim in respect of 35 guntas in survey No.54. He further submits that one of the sons of Chellappa namely, Manjunatha was arrayed as a respondent and that the petitioners are not in good terms with him. Therefore, petitioners have sought review of judgment dated 18/09/2012 in W.A. No.1283/2008.

6. Learned Additional Government advocate appearing for respondent No.1 on advance notice submits that there is a great delay and laches in filing these writ petitions. That order dated 23/03/1987 is assailed in the year 2017 which is almost after three decades and that this court may not consider the writ petition on merits and instead dismiss it on the ground of delay and laches. He further submits that the petitioners have not explained the delay in preferring these writ petitions and at this belated point of time. He further submits that petitioners' father Chellappa, did not assail the impugned order granting 25 guntas in favour of Chikkamunishamappa, in survey No.51 during his life time. Although he may have died soon after the order had been passed in the year 1987, but nothing prevented the petitioners from assailing the said order within a reasonable time. The same not having been done, this court may not interfere with the impugned order.

7. It is noted that Annexure-A impugned order of the Land Tribunal is dated 23/03/1987. Petitioners' father Chellappa had participated in the proceedings before the Land Tribunal and during his life time he did not take steps to assail that order in so far as grant of occupancy rights with regard to 25 guntas of land in survey No.51 is concerned. Although it is stated by petitioners' counsel that Chellappa died on 20/12/1988, no reasons are forthcoming from the memorandum of writ petition as to why for the last three decades petitioners did not ever think of the aforesaid extent of land in question. It is not the case of the petitioners that they were unaware of the fact that their father had indeed been owner of the said extent of land, but on the demise of their father-Chellappa have not taken steps to find out what had happened to the aforesaid extent of land. In fact petitioners are assailing order dated 23/03/2007 in the year 2017. The writ petition would have to be dismissed on the ground of delay and laches by placing reliance on decisions of the Hon'ble Supreme Court.

8. In this context, a plethora of decisions of the Hon'ble Supreme Court on the issue regarding delay and laches 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. 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. 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. (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 the case of Sawaran Latha and others v. State of Haryana and others [2010(4) SCC 532] 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) In Tamil Nadu Housing Board, Chennai v. M.Meiyappan & Others [2010 AIR SCW 7130], when the acquisition proceedings were challenged ten years after notifications were issued, the Apex Court held that the High Courts should not have entertained the writ petition particularly after passing of the award and that the High Court should have dismissed the writ petition at the threshold on the ground of delay and laches.

e) In Swaika Properties (P) Limited and another v. State of Rajasthan & others [2008 (4) SCC 695], the Apex Court has followed its earlier decisions in the case of Municipal Corporation of Greater Bombay v. The Industrial Development Investment Co. Pvt. Ltd. & others [(1996) 11 SCC 501] by observing as follows:

"After the award under Section 11 of the Act was made by the Collector he is empowered under Section 16 to take possession of the land, if the possession was not already taken, exercising power under Section 17(4). Thereupon, the land shall vest absolutely in the Government free from all encumbrances. It is well settled law that taking possession of the land is by means of a memorandum (Panchnama) prepared by the Land Acquisition Officer and signed by Panch witnesses called for the purpose. Subsequently, the collector hands over the same to the beneficiary by means of another memorandum or panchnama, as the case may be. But in this case Section 91 of the BMC Act statutorily comes into play which would indicate that the Land Acquisition Officer while making award should intimate to the Commissioner, Municipal Corporation of the amount of compensation determined and all other expenses. The Corporation shall pay over the same to the Land Acquisition Officer."

It was held that the writ petition had been filed after possession was taken over and the award had become final and therefore, the writ petition had to be dismissed on the ground of delay and laches.

f) The order of the High Court dismissing the writ petition was confirmed by the Apex Court in Banda Development Authority, Banda v. Motilal Agarwal and others [(2011) 5 SCC 394], as the filing of the writ petition was 9 years after the declaration was issued under Section 6(1) of the Act and the delay of six years after passing of the award and the delayed filing of the writ petition was a reason for refusing to entertain the prayer made in the writ petition. It was held that in a challenge made to the acquisition of land for the purpose of public purpose Courts have consistently held that the delay in filing the writ petition should be viewed seriously, if the petitioner fails to offer plausible explanation for the delay.

g) Reference can also be made to another decision of the Apex Court reported in (1996) 6 SCC 445 in the case of State of Rajasthan & Others v. D.R.Lakshmi & others, wherein it has cautioned the High Court not to entertain writ petitions where there is inordinate delay, while exercising jurisdiction under Article 226 of the Constitution of India.

h) Similarly, in the case of The Municipal Council, Ahmednagar & anr. v. Shah Hyder Beig & others [(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 as 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 be disturbed unless there is reasonable explanation for the delay."

i) In fact in S.S.Balu and others v. 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.

j) 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].

k) In Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu [(2014)4 SCC 109], on the doctrine of delay and laches and approach of the Court in that regard, the Hon'ble Supreme Court has ruled as under:

"16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, 'procrastination is the greatest thief of time' and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis."

(l) Further, recently in the case of State of Jammu and Kashmir v. R.K. Zalpuri and others [(2015) 15 SCC 602], the Hon'ble Supreme Court has opined that the writ Court while deciding a writ petition he has to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless non-interference would cause grave injustice.

9. The aforesaid decisions are squarely applicable to the present case. As far as the additional prayer sought by the petitioner by way of amendment seeking review of the judgment of the Division Bench of this court in W.A.No.1283/2008 dated 18/09/2012 is concerned, it is noted that apart from the reasons cited above, one of the brothers of the petitioner was arrayed as respondent in the writ petition as well as in the writ appeal. He was represented by a counsel. After hearing learned counsel for the respective parties, the Division Bench set aside the order of the learned single Judge and modified the order of the Land Tribunal granting occupancy rights in respect of 35 guntas of land in survey No.54. The Division Bench in paragraphs 6 to 9 has held as under;

"6. Having heard the learned Counsel for the parties, what is to be considered by us in this appeal is ;

'Whether any error is committed by the learned Single Judge in dismissing the writ petition and whether the appellants have made out a case for grant of occupancy rights in respect of 35 guntas in Sy.No.54 of Uparahalli Village ?'

7. Annexure 'C' is not in dispute. Under Annexure 'C' Cholappa, father of the first respondent has granted two lands to Chikkamunishamappa for cultivation. Annexure 'C' is not disputed and based on the same, if the Tribunal has granted occupancy rights in respect of one land, it could not have rejected the application in respect of remaining 35 guntas of land. This aspect of the matter has not been considered by the learned Single Judge. Even without looking into Annexure 'C' the learned Single Judge has dismissed the writ petition.

8. Therefore, we are of the view that an error is committed by the learned Single Judge in dismissing the petition.

Admittedly, the respondent has not challenged the grant of Occupancy Rights in respect of 25 guntas of land situated in Sy.No.51 of Upparahalli Village. When his case was that both the lands were given on lease and when the Tribunal has considered the case of one of the survey numbers, when the said order has become final, the appellants are entitled for grant of Occupancy Rights in respect of other pieces of land also.

9. In the result, the appeal is allowed. The order of the Land Tribunal is modified holding that the appellants are also entitled for grant of Occupancy Rights in respect of Sy.No.54 measuring 35 guntas of land in Upparahalli Village of Hosakote Taluk. Accordingly a direction is issued to the tribunal to confirm the occupancy rights in respect of 35 guntas of land in Sy.No.54 of Upparahalli Village. "

10. From the above, it becomes clear that the Division Bench has noted that Annexure-C, which is lease deed dated 06/05/1970 is not a disputed document and based on that document, the Tribunal had granted occupancy rights in respect of survey No.51 to an extent of 25 guntas. The Division Bench has noted that if that was so, there was no reason to the Land Tribunal to reject Form No.7 in respect of remaining 35 guntas, which was also subject matter of Annexure-C/document.

11. Looking into the aforesaid reasoning, it becomes clear that the Division Bench has ordered for grant of occupancy rights in respect of 35 guntas of land based on the material evidence produced by Chikkamunishamappa as per Annexure-C which is not a disputed document. If that is so, non- arraying of the petitioners herein in the writ petition and writ appeal filed by the legal representatives of Chikkamunishamappa, pales into insignificance.

12. It is further noted that one of the brothers of the petitioner namely, Manjunath, who was arrayed as respondent No.1 in W.A.No.1283/2008 has not assailed judgment passed by the Division Bench. The same has attained finality.

13. In view of the aforesaid discussion, I find that the prayer sought by the petitioner by way of amendment would not arise at all.

14. In the circumstances, writ petition is dismissed. Consequently, I.A.1/17 also stands dismissed.
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