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Sri Maruthi Devasthan Modag, By its Trustee, Govinda Gundu Kuklarni, Since Deceased by Lr & Others v/s The Land Tribunal, Belgaum, Represented by is Chairman & Others

    Writ Petition No. 37541 of 1997 (LR)

    Decided On, 09 March 2018

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MRS. JUSTICE K.S. MUDAGAL

    For the Petitioners: Shrikant T. Patil, Advocate. For the Respondents: R1 & R2, Ravi V. Hosamani, AGA, R4(a-c), F.V. Patil, R6, R7, R10 to R13, Rajendra R. Patil, Advocates.



Judgment Text

(Prayer: This Writ Petition is filed under Articles 226 and 227 of Constitution of India praying to quash the impugned order passed by the Land Tribunal, Belgaum, the 1st Respondent Dated 28.02.1989 Vide Annexure-K.)

1. Heard.

Whether the impugned order Annexure-K dated 28.02.1989 passed by the Land Tribunal, Belgaum, in No.Honnihal/ DVN / SR-14+15+16+17+18+19 granting occupancy rights of the lands bearing survey No.43, situated at Honnihal village in all measuring 75 acres 17 guntas to respondents 3 to 8 is sustainable in law is the question involved in this case.

2. The aforesaid land belongs to Maruthi Devasthana Trust situated at Modaga Village of Belgaum Taluk. One Mr.Moreshwar Keshav Bapat was the hereditary Trustee of the said trust. The land in all measured 92 acres 39 guntas. Out of that, 17 acres 12 guntas is pote Kharab land. Respondents 4 to 8 are the sons of the 3rd respondent Vaijappa Nagappa Belgundkar. Vaijappa Nagappa Belgundkar filed form No.7 before the Land Tribunal on 24.11.1975 claiming occupancy rights of the said lands and Mr.Moreshwar Keshav Bapat to be the landlord. The Land Tribunal on holding enquiry, by its Order dated 20.09.1981 granted occupancy rights to Vaijappa Nagappa Belgundkar (applicant No.1) and his five sons (applicant Nos.2 to 6).

3. Mr.Moreshwar Keshav Bapat, challenged the said order before this Court in W.P.No.5489/1982. This Court vide order dated 08.08.1984 allowed the writ petition and remanded the matter to the Land Tribunal for fresh consideration. On remand, the Land Tribunal conducted enquiry and by impugned order Annexure-K again granted occupancy rights to the present respondents 3 to 8 / applicants 1 to 6.

4. Mr.Moreshwar Keshav Bapat died on 23.09.1992, he did not challenge the order Annexure-K. After the death of Moreshwar Keshav Bapat, the 9th respondent i.e., Baburao, S/o Kondiba Pundapal filed W.P.No.34689/1993(KLRA) challenging the order Annexure-K. Similarly one Prakash Babu Rao Pundapal claiming himself to be the legatee of the Will of Mr.M.K. Bapat, filed W.P No.31157/1998(LR) challenging the very same order of the Land Tribunal (Annexure-K).

5. This Court on hearing W.P.No.31157/1998 and W.P.No.34689/1993 dismissed those writ petitions on 21.07.2006 and 16.01.2007 respectively and confirmed the impugned order Annexure-K. The present petitioner is respondent No.10 in W.P.No.31157/1998. Shri Maruthi Devasthan Modaga is respondent No.3 in W.P No.34689/1993. The order sheet shows that this petition and Writ Petition Nos.31157/1998 & 34689/1993 were connected to each other. On 19.12.1997 Rule was issued in the matter.

6. Though the petitioner filed this petition in 1997 he did not take steps, therefore this Court passed peremptory order on 04.08.1999 granting a week's time to take steps and in the event of default, for dismissal of the petition for non-prosecution without further order of the Court for not doing the needful. The petition was dismissed and then other two matters were de-linked from this writ petition and disposed of separately.

7. Before Land Tribunal, the present petitioner initially represented Moreshwar Keshav Bapat as his power of attorney holder. Later Moreshwar Keshav Bapat terminated the said power of attorney and conducted the proceedings on his own. After five years of death of Moreshwar Keshav Bapat, petitioner herein comes before this Court, in this petition contending

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that Moreshwar Keshav Bapat has executed a Will bequeathing his interest in the Trust and thereby he represents estate of Moreshwar Keshav Bapat. He further seeks to challenge the Order Annexure-K on the ground that the same is perverse, arbitrary and illegal.

8. Sri Shrikant T. Patil, the learned counsel for the petitioner reiterating the grounds of the petition, in his arguments seeks to challenge the impugned order Annexure-K on the following grounds:

(i) As per the statement given by the first applicant himself, he was only reaping the grass from the land in question on contract basis. Therefore, there is no jural relationship of landlord and tenant. The Land Tribunal has granted occupancy rights to him ignoring such material admission;

(ii) As per the Record of Rights of the disputed lands for the past thirty years, it is only a grass land and not the land where the grass was being cultivated. Therefore, the land is not agricultural land as contemplated under Karnataka Land Reforms Act. On that count also, the impugned order is illegal;

(iii) Form No.7 was filed only by respondent No.3 and not by respondents 4 to 8. In the absence of any submission of form No.7 by respondents 4 to 8, the order granting occupancy rights to them is illegal;

(iv) Impugned order of the Land Tribunal is not signed by all the Members of the Tribunal;

(v) The impugned order is passed without giving sufficient opportunity of hearing;

(vi) The Land Tribunal should have seen that Moreshwar Keshav Bapat gave first statement denying the jural relationship and later supporting the claim of respondents 4 to 8.The Land Tribunal should have seen that when the subsequent statement was given by Moreshwar Keshav Bapat he was old aged and had debility;

(vii) The Land Tribunal overlooked the admission of respondent No.3 made in another parallel proceedings regarding the nature of the land;

(viii) The delay and laches alone do not vitiate the claim in writ petition.

9. In support of his contentions he relies upon the following judgments:

(1) Siddappa Kariyappa & Another vs. Land Tribunal, Ranebennur & Ors; 1978 Part 1 Kar.L.J 83;

(2) Patel Rudrappa vs. Jadiyappa & Ors; 1979 part 2 Kar.L.J 108;

(3) Rabindra Nath Biswas Vs. General Manager, N.F.Rly. & Ors; AIR 1988 PATNA 138

(4) Collector, Land Acquisition, Anantnag & Another Vs. Mst. Katiji and Ors; AIR 1987 SC 1987

(5) Smt. Pujari Bai etc., Vs. Madan Gopal (dead) L.Rs.viz. Smt. Jaiwanti and Others; AIR 1989 SC 1764

(6) Mahaveer Chambanna Kallimani & Others Vs. State of Karnataka & Ors; 1996(7) Kar.L.J. 699

(7) U.P.State Sugar Corporation Ltd. & others Vs. Raza Buland Sugar Co. Ltd. and others; AIR 2001 ALLAHABAD 100

(8) The Gwalior Sugar Company Ltd. Vs. State of M.P. & Ors; AIR 2006 M.P. 218

10. Sri F.V. Patil, learned counsel appearing for the contesting respondents in his arguments seeks to oppose the writ petition and support the impugned order on the following grounds:

(a) There is delay of more than eight years in filing the petition. Therefore the petition is liable to be dismissed on the ground of delay and laches;

(b) The original landlord Sri Moreshwar Keshav Bapat himself did not challenge the impugned order Annexure-K till his death. Therefore the petitioner who claims to be the legatee under the alleged Will of Moreshwar Keshav Bapat cannot challenge the said order;

(c) The very order Annexure-K was challenged before this Court in W.P. Nos.31157/1998 and 34689/1993 and this Court upheld the said order on adjudication. The said petitions were between the same parties or through whom they claim. Therefore the present petition is barred by the principles of res-judicata.

(d) The petitioner is guilty of suppression of material facts and making false representations in as much he suppressed the reversal of revenue entries Annexures - C and D made by the Revenue Appellate Authorities. He has also suppressed the order of the Assistant Charity Commissioner, Belgaum declaring the Maruthi Devasthana Trust to be the Public Trust.

(e) On merits also the order is sustainable since the original landlord Moreshwar Keshav Bapat himself conceded before the Land Tribunal that respondent Nos. 3 to 8 are the tenants of the property. The petitioner who claims through said Moreshwar Keshav Bapat cannot go against such admissions of Moreshwar Keshav Bapat.

(f) The contention that while making statement before the Land Tribunal Moreshwar Keshav Bapat was senile is unacceptable because, in R.A. LR No.116/1989 filed by Govind Gundu Kulkarni which was converted to W.P.No.34689/1993, on 11.05.1990 he has filed statement of objections with verifying affidavit.

(g) The petition is a malafide one. The conduct of the petitioner disentitles him for relief.

(h) After the impugned order of the Land Tribunal occupancy certificate is issued to respondent Nos.3 to 8. The petitioner allowed this petition to be dismissed for non-prosecution on 04.08.1999. He stood by and watched the proceedings in W.P. Nos.31157/1998 and 34689/1993. After dismissal of both those petitions, petitioner filed the applications for restoration of this petition and got this petition restored to file on 30.08.2010.

(i) Petitioner is guilty of the abuse of the process of the Court and pursuing the matter only to harass the contesting respondents.

(j) The proceedings before the Land Tribunal show that, Moreshwar Keshav Bapat complaining the misconduct on the part of Govind Gundu Kulkarni, the present defacto petitioner, terminated the power of attorney and conducted the proceedings on his own. The said Moreshwar Keshav Bapat claimed to be the Trustee of the Maruthi Devasthanam Modaga Temple. If that be so, he cannot bequeath the Trust properties or his post of Trustee.

(k) The landlord in his declaration in Form-11 declared respondent Nos.3 to 8 to be the tenants of the property.

11. In support of his arguments, he seeks to rely upon the following Judgments:

(1) Dabulu Shedthi Vs. State of Karnataka and others, 2005 (5) KLJ 575(DB);

(2) Sheikh Abdul Kayum and others v. Mulla Alibhai and others, AIR 1963 SC 309.

Reg. Maintainability:

12. There is no dispute that the property in question belongs to Maruthi Devasthan Modaga and Moreshwar Keshav Bapat was the hereditary Trustee of the said Trust. There is also no dispute that initially in the proceedings before the Land Tribunal, the present writ petitioner Govind Gundu Kulkarni represented Moreshwar Keshav Bapat as his power of attorney holder. There is no dispute that Moreshwar Keshav Bapat imputing misconduct and disloyalty to Govind Gundu Kulkarni terminated the power of attorney executed in his favour and he conducted the subsequent proceedings on his own.

13. The present writ petition is filed by Maruthi Devasthanam Modaga through its alleged Trustee Govind Gundu Kulkarni, on the ground that the original Trustee Moreshwar Keshav Bapat has bequeathed the lands in his favour under the Will Annexure-B dated 06.02.1983. The impugned order is passed in 1989. Earlier to that, there was one more order passed. In none of those proceedings, Moreshwar Keshav Bapat revealed anything about the Will.

14. By the time the impugned order was passed in the year 1989, the relationship between Govind Gundu Kulkarni and Moreshwar Keshav Bapat had strained to the extent of Moreshwar Keshav Bapat cancelling the power of attorney executed in favour of Govind Gundu Kulkarni in those proceedings making allegations of misconduct and disloyalty. In those proceedings nowhere Moreshwar Keshav Bapat whispered about any Will.

15. The order of the Assistant Charity Commissioner, Belgaum in Application No.1281/1952 dated 16.08.1954 is available in the records of the Land Tribunal relating to the case on hand. (page 1007). The said order shows that Moreshwar Keshav Bapat filed application claiming that the deity of the temple is private deity and therefore public have no access to that. In the proceedings, the Assistant Charity Commissioner raised several points for consideration. The relevant points for this case, framed in page No.1 of the said order are as follows:

(1) Whether a Trust exists and whether such a Trust is a public Trust?

(2) Whether the property as shown in the application is the property of the Trust and what is the estimated value of the movable and immovable property?

(3) xxxx

(4) What are the names and addresses of the Trustees and managers of the Trust?

(5) What is the mode of Succession to the Trusteeship and managership?

16. The Assistant Charity Commissioner held that Maruthi Devasthanam Trust Modage is a public Trust and the deity therein is a public deity and the lands in question were granted / dedicated to the said deity either by the previous Rulers (Sangli) / or the British Government. Ultimately the Assistant Charity Commissioner ordered that the Trust is registered as a Public Trust and the properties are the Public Trust Properties.

17. In Sheikh Abdul Kayum's case referred to supra, the Supreme Court has held that Trustees cannottransfer their duties, functions and powers to some other body of men and make them Trustees in their own place unless the same is clearly permitted by the Trust Deed. Para 16 of the said Judgment reads as under:

"16. There cannot, in our opinion, be any doubt about the correctness of the legal position that trustees cannot transfer their duties, functions and powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed, or agreed to by the entire body of beneficiaries. A person who is appointed a trustee is not bound to accept the trust; but having once entered upon the trust he cannot renounce the duties and liabilities except with permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself. Nor can a trustee delegate his office or any of his functions except in some specified cases. The rules against renunciation of the trust by a trustee and against delegation of his functions by a trustee are embodied, in respect of trusts to which the Indian Trusts Act applies, in Ss.46 and 47 of that Act. These sections run thus:-

"46. A trustee who has accepted the trust cannot afterwards renounce it except (a) with the permission of a principal Civil Court of Original Jurisdiction, or (b) if the beneficiary is competent to contract, with his consent, or (c) by virtue of a special power in the instrument of trust.

47. A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation."

(Emphasis supplied)

18. Having regard to the aforesaid Judgment, first of all, the alleged transfer of property by Moreshwar Keshav Bapat to Govind Gundu Kulkarni(petitioner) under Will is unacceptable. Apart from that when Moreshwar Keshav Bapat did not challenge the order of the Land Tribunal during his life time, Govind Gundu Kulkarni has no locus-standi to challenge the order after the death of Moreshwar Keshav Bapat. More so, the heirs of Govind Gundu Kulkarni have no locus-standi to prosecute the writ petition.

Reg. Res-judicata:

19. 7th Applicant in Annexure-K challenged the said order before this Court in W.P.No.34689/1983. That petition came to be dismissed on 16.01.2007. The present petitioner Maruthi Devasthanam Modage was the 3rd respondent in that case. One Prakash Babu Rao Pundapal challenged the very same order Annexure-K in W.P. No.31157/1998 before this Court claiming that he is the trustee of the petitioner - Trust. In that matter, Baburao Kondiba Pundapal was the 9th respondent and Govind Gundu Kulkarni who has filed the present petition as Trustee of the Trust was the 10th respondent. In both the cases, the present respondent Nos.3 to 8 in whose favour the occupancy rights was granted are the respondents. W.P.No.31157/1998 came to be dismissed on 21.07.2006 on merits.

20. As already pointed out, the grounds of challenge to the order in this case are the applicability of the Land Reforms Act, jural relationship between the respondent Nos.3 to 8 and the petitioner, Annexure-J the statement allegedly given by Vyju Nagappa Belagundakara applicant No.1 before the Land Tribunal. There also the petitions were contested on the ground of maintainability/ locus of the petitioner.

21. It is also relevant to quote para Nos. 3 to 6 of the Judgment in W.P. No.34689/1993 which reads as follows:

"3. In the appeal, the petitioner states that the land is not an agricultural land as defined U/s. 2(18) of the Karnataka Land Reforms Act. The R4 on contract was purchasing the wild grass in her land once in a year. The contentions raised in the appeal filed before the Appellate Authority contradicts the very claim of the petitioner that he is the cultivating tenant of the land in question. The RTC records show cultivation of land by R4 to R8.

4. The Counsel for the petitioner referred to the statement made by R4 before Deputy Tahsildar that he is not cultivating the land and he was only purchasing the grass annually on contract basis. The said material is not the deposition of 4th respondent recorded by the Tribunal. The original of the deposition made before Deputy Tahsildar is also not available on record to show that it is in the nature of an affidavit. The said document is not confronted to R4 in the cross-examination. Therefore, the alleged statement made before the Deputy Tahsildar cannot have evidentiary value and cannot be considered as an authentic material to rely upon its contents.

5. When the petitioner himself does not claim any tenancy rights in the appeal filed before the Appellate Authority, it is impermissible for him to say that he is the rival claimant and that his application is pending.

6. In that view of the matter, I find no merit in the petition. Accordingly, petition dismissed."

(Emphasis supplied)

22. In W.P. No.31157/98 (LR) this Court, in para 1, has held that the question raised in the writ petition mainly is whether land in Sy. No.43 of Honnihal Village is merely a grass growing land or a cultivable agricultural land? On considering the rival contentions regarding maintainability of the petition, in view of the dismissal of W.P. No.37541/1997 (present petition) for non-prosecution on 04.08.1999 and locus of the petitioner etc., in para Nos.6 to 9 it is held as follows:

"6. It is not in dispute between the parties that the order passed by the Land Tribunal dated 28.02.1989 was questioned in W.P.No.37541/1997 and the said writ petition was filed by Maruthi Devasthana, Modaga, by its Trustee Govinda Gindu Kulakarni, and the said writ petition came to be dismissed for non-prosecution. The very same order, which was the subject matter of the above writ petition, has again been assailed in the present writ petition though by a different person claiming to be the trustee of the temple in question. In the decision referred to by the learned counsel for the contesting respondents in the case of D.Sangya Naik, supra, it has been held by a learned Single Judge of this court in paragraphs-9 and 10 as under:

"9. These Rules provide for restoration of suits dismissed under Rule 8 for non-appearance. It also mandates that the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. It enables him to apply to the same Court which dismissed the suit for non-appearance for setting aside the order of dismissal on his showing sufficient cause for his non-appearance when the suit was called on for hearing. The dismissal of the suit under Rule 8 does not operate as "res-judicata". It only imposes a disability on the plaintiff. This Rule is based on sound public policy. The principle underlying this provision is that a litigant who comes to Court with a cause should agitate the matter with due diligence and take a decision on merits, so that a finality is reached. Otherwise, there would not be any finality, and the opposite party could be harassed endlessly, by allowing the proceedings to be dismissed for non-prosecution and re-agitate the matter time and again at his convenience and leisure. Then this judicial process would become an instrument of oppression rather than a means to resolve disputes in a civilized way. Therefore, it is a rule of estoppel, which finds a statutory recognition in Order IX Rule 8 CPC, which prevents the party from filing a suit on the same cause of action, if the earlier suit is dismissed for non-appearance. These provisions would also equally apply to the writ proceedings. When the earlier writ petition was dismissed for non-appearance of the petitioner on the day the case was set down for hearing, the petitioner shall be precluded from bringing a fresh writ petition on the same cause of action challenging the very same order which was the subject matter of the said proceedings.

10. The argument was that the petitioner is innocent, he had entrusted his case to his counsel who has let him down and therefore he should not be penalized. Though technically the writ petition is dismissed for non-prosecution on the date the case was set down for hearing, it cannot be said that such an order is bad. When a party engages a counsel it is his duty to see that his counsel is present when the case is called for hearing. Order IX Rule 9 provides for a remedy to the petitioner to file an application to recall the said order by showing sufficient cause for his absence. When a legislature provides a remedy for getting the said order set aside, he has to follow the procedure prescribed under law. If he does not choose to follow the said procedure and if chooses to follow the procedure which is not recognised in law, he cannot have any grievance. Under these circumstances, the bar contained in Order IX Rule 9 CPC which is equally applicable to writ rules is absolute and no discretion is conferred on any Court to ignore the aforesaid statutory provision and entertain the second writ petition challenging the order which was the subject matter of earlier proceedings which came to be dismissed for non-prosecution."

7. In the light of the aforesaid decision of this court, in the instant case also, the earlier writ petition though dismissed for non-prosecution, was in respect of the very same order that is assailed in the present writ petition. Therefore, I am of the considered opinion that the present writ petition is not maintainable for the reasons stated above.

8. That apart, the present writ petition has been filed not in the capacity of the trustee of the Temple in question but it is filed by one Prakash Babu Rao Pundapal, since deceased, and his L.Rs. are brought in his place. For the said reason also, the writ petition is liable to be dismissed.

9. Finally, the order that is assailed in this petition was passed as far back as in the year 1989 and, as rightly put by the learned counsel for the contesting respondents, the original trustee did not question the impugned order for over two years and it is only after his death, that the present writ petition came to be filed and the fact that there is a long delay in questioning the impugned order is also one of the factor, though not the sole factor, which inclines this court to dismiss the present writ petition."

(Emphasis supplied)

23. The reading of the above two Judgments shows that this Court in those two Judgments considered the question whether the land in question is an agricultural land warranting application of Sections 2(18) and 48A and other provisions of the Karnataka Land Reforms Act, the locus-standi of the petitioner, res-judicata, delay and laches, so also the acceptability of Annexure-J in evidence.

24. In this case also, the petitioner relying on Annexure-J contends that the 3rd respondent has given the statement before the Special Tahsildar, Belgaum admitting that he is not the tenant. But in W.P. No.34689/1993, this Court rejected the said contention holding that the statement is not the deposition recorded by the Tribunal nor that was confronted to present respondent No.3 in his cross-examination. So far as the nature of the land, this Court held that the RTC records showed the cultivation of the land by the present respondent Nos.3 to 8.

25. In W.P. No.31157/98 (LR) relying on the Judgment of this Court in D.Sangya Naik Vs. Department of Telecom, New Delhi, reported in ILR 2005 KAR 1874, it is held that if once the petition is dismissed for non-prosecution by virtue of Order IX Rule 8, the party is barred from bringing another petition on the same cause of action and his only remedy is to apply for setting aside that order invoking Order IX Rule 9 of CPC. It was further held that the said provision of CPC is equally applicable to writ proceedings.

26. In W.P. No.31157/98 (LR) this Court held that the said petition is barred by principles of res judicata and the heirs of a Trustee cannot maintain a petition. It was further held that since the original Trustee did not question the impugned order for two years, on his death after the long delay of two years, the petitioner or his legal heirs cannot question the impugned order. Thus the Court dismissed the petition on the grounds of res judicata, locus-standi, maintainability, delay and laches. The very same grounds are urged in this writ petition also. The petitioner - Trust was party in both the cases, as well as Mr. Govind Gundu Kulkarni was also party in W.P. No.31157/98 (LR). Thus the issues in this writ petition are already heard and adjudicated by this Court in the earlier two petitions.

27. Mr. Shrikant T. Patil, learned counsel appearing for the petitioner contends that in the Judgments in those two cases, petitioner is not shown to have represented by any counsel, therefore it cannot be said that the case was heard and decided. The said contention is wholly untenable for the reason that by the order dated 19.12.1997 the present petition was connected with, the aforesaid other two writ petitions which sufficiently shows that the petitioner had the notice of other two petitions and participated earlier in those proceedings upto the dismissal of this petition for non- prosecution on 04.08.1999. Only after the dismissal of the present petition for non-prosecution, those two cases were heard and decided.

28. Further having regard to the Judgment in D.Sangya Naik's case, if the orders in the above said writ petitions are ex-parte, the remedy of the petitioner is to seek setting aside those Judgments by invoking Order IX Rule 9 of CPC since the said Rules clearly apply to writ proceedings also, as held in the said case. Therefore, those Judgments still operate against the petitioner. Apart from that, perusal of para No.1 of Judgment in W.P. No.31157/98 (LR) shows that Prakash Babu Rao Pundapal filed the said writ petition in his capacity as a Trustee and successor in interest on behalf of Maruthi Devasthanam Modaga. He was represented through his counsel. The present petition is also filed by the said Trust. Therefore the said Judgment operates as res judicata against the petitioners.

29. The Judgments in the aforesaid writ petitions clearly show that they were decided on merits. Therefore, there is no merit in the contention that those petitions were dismissed in limini and they do not operate as res judicata. Therefore the Judgment relied upon by the learned counsel to defend the case on the points of res judicata, the jural relationship etc. are all not applicable to the facts of this case.

30. In Dabulu Shedthi's case referred to supra, the Division Bench of this Court held that even dismissal of the writ petition for non-prosecution also operates as res judicata having regard to the public policy. This Court in the said Judgment, relying on the Judgment of the Supreme Court in State of Uttar Pradesh and Another vs. Labh Chand, 1993 (2) SCC 495 held as follows:

"6. Having heard the learned Senior Counsel for considerable time, we find that we cannot grant any relief to the appellant / petitioner. Our opinion is grounded on more than one premise. The first premise is that it is totally impressible as well as improper to test the wisdom or the correctness of the opinion and the decision of a Co-ordinate Bench explicitly expressed in the order made by it on 28.08.1997. The extracted portion of the order supra would clearly go to show that the Co-ordinate Bench applied its mind, concluded that there was no satisfactory explanation for four years delay in preferring the civil petition. The four years inordinate delay without satisfactory explanation was the main reason for the Division Bench to refuse relief. If the Co-ordinate Bench did not find the explanation satisfactory while dealing with the civil petition, this Bench cannot review that finding and record that the explanation is satisfactory. The second premise for refusing the relief rests on the binding authority of the judgment of the Supreme Court in State of Uttar Pradesh and Another v. Labh Chand, (1993) 2 SCC 495. In that case, a Division Bench of Allahabad High Court had refused to entertain a writ petition on the ground of non-exhaustion of alternative remedy. When the same order was again challenged by the person concerned by filing another writ petition, learned Single Judge entertained the writ petition and the propriety of entertaining and maintenance of the said writ petition fell for decision before the Apex Court and the Apex Court while disapproving the action of the learned Single Judge in entertaining the writ petition notwithstanding the fact that on an earlier occasion, the Division Bench had declined to entertain the writ petition on the ground of non- exhaustion of alternative remedy, observed thus:

"20. W hen a Judge of Single Judge Bench of a High Court is required to entertain a second writ petition of a person on a matter, he cannot, as a matter of course, entertain such petition, if an earlier writ petit ion of the same person on the same matter had been dismissed already by another Single Judge Bench or a Division Bench of the same High Court, even if such dismissal was on the ground of laches or on the ground of non- availing of alternate remedy. Second writ petition cannot be so entertained not because the learned Single Judge has no jurisdiction to entertain the same, but because entertaining of such a second writ petition would render the order of t he same Court dismissing t he earlier writ petition redundant and nugatory, although not reviewed by it in exercise of the recognised power. Besides, if a learned Single judge could entertain a second writ petition of a per son respecting a matter on which his first writ petition was dismissal in limine by another learned Single Judge or a Division Bench of t he same Court, it would encourage an unsuccessful writ petitioner to go on filing writ petition after writ petition in the same matter in the same High Court, and have it brought up for consideration before one Judge after another. Such a thing if is allowed to happen, it could result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the HighCourt exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any Bench of such Court ref using to entertain a writ petition could be ignored by him with impunity and relief sought in the same matter by filing a fresh writ petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court f or there could be no finality for an order of the Court ref using to entertain a writ petit ion. It is why, the rule of judicial practice and procedure that a second writ petition shall not be entertained by the High Court on the subject-matter respecting which the first writ petit ion of the same person was dismissed by the same Court even if the order of such dismissal was in limine, be it on the ground of laches or on t he ground of non- exhaustion of alternate remedy, has come to be accepted and followed as salutary rule in exercise of writ jurisdiction of Courts."

(Emphasis supplied)

In view of aforesaid judgment, facts and circumstances, this petition is barred by principles of res judicata.

Reg. Malafides / Delay and Laches:

31. After 8 years the petitioner initially filed this petition challenging the order of Land Tribunal, Annexure- K. By that time, the occupancy certificate had already been issued to respondent Nos.3 to 8. It is the contention of the contesting respondents that the petitioner himself set up Baburao and his son Prakash to file W.P. Nos. 34689/1993 (KLRA) and 31157/98 (LR) and being aware of the merits of the case, got this case dismissed for non- prosecution. Further, the petitioner sat on the fence and watched what all happened in those two cases and after dismissal of those two cases, in 2009 he filed applications seeking restoration of this case only to harass respondent Nos.3 to 8. Therefore they claim that the petition is tainted with malafides.

32. All such submissions of the learned counsel for contesting respondents are borne out from the records. At the cost of repetition it has to be said that till the dismissal of the two writ petitions, the petitioner showed indolence in the matter. The dismissal of this petition on was 04.08.1999. As already pointed out, W.P. Nos.31157/98 (LR) and 34689/1993(KLRA) came to be disposed of on 21.07.2006 and 16.01.2007. After disposal of those petitions, the petitioner herein, filed Misc. (W) Nos.6992/2009, 6993/2009 and 6994/2009 in this petition for condonation of delay, recalling the dismissal order dated 04.08.1999 and to bring the legal representatives of deceased petitioner on record, respectively. Those applications were also dismissed for default on 04.03.2010. Later those applications were restored to file on 07.04.2010. Thereafter, the present writ petition was restored to file on 30.08.2010.

33. The said conduct sufficiently demonstrates that the petitioner sat on the fence, watched the proceedings and plunged to the field when he found it convenient, thereby the petitioner has abused the process of the Court. The writ petition is wholly vexatious and untenable. Therefore petition dismissed with cost of Rs.25,000/- payable to respondent Nos.4, 5, 5(a) to 5(c), 6, 7, 8(a) to 8(e).

In view of the disposal of the petition, I.A.1/18 does not survive for consideration and disposed of accordingly.
O R