Karnataka High Court
Smt Parvathi Bai vs The Land Tribunal on 8 January, 2013
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
-1-
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 08TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION NO.37867 OF 2011 (LR-SEC 48-A)
BETWEEN:
1. Smt.Parvathi Bai,
Aged about 80 years,
W/o Late B.H.Parameshwara Rao.
2. Smt.Lakshmikantha,
Aged about 58 years,
D/o Late B H Parameshwara Roa.
3. Smt.Hamsa Bai,
Aged about 55 years,
D/o Late B H Parameshwara Rao.
4. Sri B P Laxman Rao,
Aged about 52 years,
S/o Late B H Parameshwara Rao.
5. Smt.Nalini,
Aged about 48 years,
D/o Late B H Parameshwara Rao.
6. Smt.Shobha Prakash,
Aged about 45 years,
D/o Late B H Parameshwara Rao.
All are R/at Kirloskar Layout,
Basaveshwaranagar,
Bangalore - 560 079. ... Petitioners
-2-
(By Sri Y R Sadasiva Reddy, Advocate)
AND:
1. The Land Tribunal,
Bangalore South Taluk,
Bangalore,
Represented by its Chairman.
2. Sri Munisubba,
Aged about 60 years,
S/o Late Munibyrappa.
3. Sri Kodandarama,
Aged about 40 years,
S/o Late Munirangappa.
4. Sri Somashekar,
Aged about 40 years,
S/o Late Thimmarayappa
The Respondent No.2 to 4 are
R/at Vasanthapura,
Subramanyapura Post,
Bangalore - 560 061. ... Respondents
(By Sri Shashidhar S Karamadi, HCGP for R1:
Sri S.S.Ramadas, Senior Counsel for
Sri V.Vishwanath, Advocate for R2 to R4)
This writ petition is filed under Articles 226 & 227
of the Constitution of India, praying to call for records in
LRF No.459/74-75 on the file of the Land Tribunal,
Bangalore South Taluk, Bangalore and etc.
This writ petition, coming on for preliminary
hearing in 'B' Group, this day, the Court made the
following:
-3-
ORDER
The petitioners have called into question the first respondent Land Tribunal's order, dated 27.01.1977 (Annexure-A) granting the occupancy rights in respect of the lands in question in favour of Munibyrappa, the father of the respondent No.2. The petitioner No.1 is the wife and the petitioner Nos. 2 to 6 are the children of the late B.H.Parameshwara Rao, the owner of the lands in question.
2. Sri Y.R.Sadashiva Reddy, the learned counsel for the petitioners submits that the Form No.7 application filed by Munibyrappa under whom the respondent Nos. 2 to 4 claim, is for five items of land. On the other hand, the Tribunal granted the occupancy rights in respect of seven items of land. -4-
3. He submits that the land at Sy.No.21 (New No.32/3) measures 1 acre 34 guntas as far as the petitioners' share is concerned. In the said land, Munibyrappa made application for the grant of 1 acre 10 guntas, but what is granted to him is 1 acre 34 guntas.
4. The learned counsel submits that the Tribunal appears to have granted the extent of the land sought by Munibyrappa in the adjoining survey number lands.
5. He submits that B.H.Parameshwara Rao had no knowledge, much less any notice of the proceedings of the Land Tribunal. He submits that the impugned order states that the telegram is sent by Parameshwara Rao's son. He submits that no notice, whatsoever, is issued by the Land Tribunal to Parameshwara Rao.
6. He submits that the contesting respondent's reliance is on Parameshwara Rao's letter, dated -5- 14.10.1977 (Annexure-R2) to the additional statement of objections of the respondent No.2. In the said letter, he indicated his objections to the fixation of the premium. The contesting respondents are using the said letter to attribute the knowledge of the passing of the impugned order to Parameshwara Rao.
7. The learned counsel submits that the signature found on Annexure-R2 is not that of Parameshwar Rao at all. He requests the Court to tally the signature found on Annexure-R2 with his admitted signature on the partition deed at Annexure-B. He submits that he has no objection if the signature is sent to the expert for verification and comparison.
8. The learned counsel relies on the Division Bench's decision of this Court in the case of G.JAYARAM REDDY vs. STATE OF KARNATAKA AND OTHERS reported in ILR 2005 Kar.1963. He read out paras 12, 14 and 15. They are extracted hereinbelow: -6-
"12. The Supreme Court in DURGA PRASAD vs. CHIEF CONTROLLER OF IMPORTS (AIR 1970 Supreme Court 769), dealing with the question what is the measure of delay held thus:
"No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. That is a matter which must be left to the discretion of the High Court and like all matters left to the discretion of the Court, in this matter too discretion must be exercised judiciously and reasonably."
Generally speaking, the Court would be justified in refusing the relief on the ground of delay and laches only in a case where the conduct of the petitioner, in keeping quite, created an equity in favour of the respondent or where interest of third party is allowed to come into life or for such other similar reasons -7- where the Court is satisfied that granting of relief to the petitioner would result in undue hardship to the respondent or third parties or affect public interest and not otherwise. Delay as such can never be an absolute bar for the Court to entertain the petition if it finds that the complaint made in the petition is a continued violation of Fundamental Rights or other rights of the petitioner.
................................
14. In the case of COLLECTOR, LAND ACQUISITON, ANANTNAG AND ANOTHER vs. MST.KATIJI AND OTHERS ((1983) 2 SCC 132, the Apex court has emphasized liberal approach to be adopted by the Courts in the matter of condoning delay. In para 3 of the judgment, the Apex Court held thus:
"The legislature has conferred the power to condone the delay by enacting S.5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to -8- enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained"
does not mean that a pedantic approach should be made. Why not every hour's delay, -9- every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala- fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
15. In M/S.TEHRI ROTHAS LIGHT RAILWAY COMPANY LIMITED vs. DISTRICT BOARD, BHOJPUR AND OTHERS AIR 1993 SC 802 -10- the Supreme Court, while reiterating the principle that the Court may decline relief on the ground of delay and laches held that rule is not a rule of law but is a rule of practice, and if the Court finds an illegality manifest in the impugned order and applicant in the writ has explained the delay in not challenging the impugned action at an earlier point of time, then, the Court would be justified in condoning the delay. In the case of H.D.VORA vs. STATE OF MAHARASHTRA AND OTHERS AIR 1984 SC 866 the Supreme Court has condoned even 30 years delay in approaching the Court where it found violation of substantive legal right of the applicant. In that case, the requisition of a premises made by the State was assailed. It was found that the order of requisition did not set out the public purpose for which it was made neither any material was placed before the Court to show what was the public purpose for which the order was made. It was also found by the Court that the allottee to whom the requisitioned property was allotted was neither a government servant nor -11- a homeless person as required under the law. In the circumstances, notwithstanding the fact that the applicant approached the Court after lapse of 30 years, the Apex Court has opined that there was justification for the Court to step in under Article 226 of the Constitution and grant the relief to the writ applicant."
9. He submits that the petitioners came to know of the passing of the impugned order by the Tribunal only on their filing O.S.No.3311/2011 against the contesting respondents. The suit was for declaration and injunction. In the said suit, the contesting respondents mentioned the granting of the occupancy rights by the Tribunal in their written statement. It is thereafter that the petitioners applied for a copy of the Tribunal's order and filed this writ petiton. Viewed in this background, there is no delay on the part of the petitioners.
10. Sri Ramdas, the learned Senior Counsel appearing for Sri V.Vishwanath for the respondent Nos. -12- 2 to 4 submits that this petition is hopelessly barred by delay and laches. The impugned order is challenged after 34 years of its passing. He submits that the petitioners' father Parameshwrara Rao was aware of the proceedings before the Land Tribunal. He brings to my notice, the telegram sent on 27.01.1977 by the said Parameshwara Rao. It reads as follows:
'Ill health. Not possible to attend. Prays adjournment.' Its copy is at Annexure R1. He also brings to my notice the letter, dated 14.10.1977 (Annexure-R2) in which Prameshwara Rao has objected to the fixation of the premium. In the said letter he also confirms and refers to the issuance of the telegram. He brings to my notice the letter, dated 01.02.1993 (Annexure-R4) submitted by the fourth respondent.
11. The learned Senior Counsel relies on the Apex Court's judgment in the case of AFTALOON AND -13- OTHERS vs. LT.GOVERNOR OF DELHI AND OTHERS reported in (1975) 4 SCC 285. He read out para 11, which is as follows:
"11. Nor do we think that the petitioners in the writ petitions should be allowed to raise this plea of their conduct in not challenging the validity of the notification even after the publication of the declaration under Section 6 in 1966. Of the two writ petitions, one is filed by one of the appellants. There was apparently no reason why the writ petitioners should have waited till 1972 to come to this Court for challenging the validity of the notification issued in 1959 on the ground that the particulars of the public purpose were not specified. A valid notification under Section 4 is a sine qua non for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds -14- which were available to them at the time when the notification was published would be putting a premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners (See Tilokchand Motichand vs. H.B.Munshi and Rabindranath Bose vs. Union of India (1970) 2 SCR 697)."
12. The learned Senior Counsel has also relied on the Apex Court's judgment in the case of INDRAPURI GRIHA NIRMAN SAHAKARI SAMITI LTD., vs. THE STATE OF RAJASTHAN AND OTHERS reported in (1975) 4 SCC 296, wherein the challenge to the acquisition proceedings came to be rejected on the ground of nine years' delay.
13. The learned Senior Counsel submits that the petitioner's reliance on the Division Bench judgment in JAYARAMA REDDY's case does not come to the rescue of the petitioners in any way. He submits that in the said case, the Court took a lenient view because of three -15- parameters. (a) If the fraud is alleged, (b) if the taking of the action is deferred on account of wrong advice and (c) if no third party interests have come in, the delay can be condoned. In the absence of these three factors, the clock cannot be put back, so submits the learned Senior Counsel.
14. The learned Senior Counsel submits that this petition is filed at the instance of the front-man, namely M.Lokesh, who claims to be the general power of attorney holder of the petitioners. He also submits that the contesting respondents' enquiries reveal that the petitioner Nos. 2 to 4 are not found in the address as shown in the cause title of the memorandum of the writ petition.
15. Sri V.Vishwanath, the learned counsel for the respondent Nos. 2 to 4 submits that the survey numbers found in Annexure R8 and its accompanying endorsement correspond to the survey numbers found -16- in the application for the grant of occupancy rights (Annexure-J). He submits that there is no granting of the land in excess of what was prayed for.
16. The learned Senior Counsel has filed the information regarding the application for the granting of the land in the tabular form which is extracted hereinbelow:
Old Extent New Extent Differential Excess No. Sought No. Granted extent 24 4.00 53/1 2.21 1.19 -
21 1.10 32/3 1.34 - 0.24 31 1.33 38/4 1.00 0.33 -
29 0.20 36/4 0.13 0.07 -
25 0.30 44/1 0.21 0.07 -
Total 8.13 - 6.09 - -
17. The learned Senior Counsel submits that the petitioners have nothing to do with the land at Sy.Nos. 5 and 23 (New Nos.42/2 and 43/3 respectively). He submits that while doing the resurvey operations, five survey numbers in question are renumbered and made seven survey numbers. He submits that the lands in -17- question are adjoining, the extent of the lands appears to have been shown in the seven survey numbers after the resurvey. He submits that at any rate, there is no excessive granting of the land, as the application is for the grant of the land measuring 8 acres 13 guntas and what is granted by the Land Tribunal is 6 acres 9 guntas.
18. The learned Senor Counsel also submits that the lands in question are alienated and divided;
numerous third party interests have come in. The third parties have no notice of these proceedings. He would therefore contend that entertaining this writ petition at this juncture is therefore unwarranted.
19. In the course of rejoinder, Sri Sadashiva Reddy, the learned counsel for the petitioners denies the statement of the contesting respondents that the petitioners' father Parameshwara Rao had nothing to do with the land at Old Sy.Nos.23 and 5 (New Nos.43/3 -18- and 42/2). He submits that the petitioners' father Parameshwara Rao was indeed the owner of 16 guntas at Sy.No.43/3 and 24 guntas of the land at Sy.No.42/2. He also refutes the statements urged on behalf of the contesting respondents that only 2 acre 22 guntas were available for the grant of occupancy rights in the land at Sy.No.53/1. He submits that the lands belonging to the petitioners' grand father Darji Hanumantharao at Sy.No.53/1 measures 2 acres 35 guntas. Therefore, he would contend that more lands came to be given at the adjoining survey numbers.
20. Sri Reddy submits that from 1971 till 2004, the name of the petitioners' father was continued to be shown in the records uninterruptedly. He submits that the land measuring one acre at Sy.No.53/1 was gifted in favour of Mahalakshmi Devi Temple and that when the said one acre of land was acquired for a public purpose, it is -19- the Temple Management which received the compensation thereof.
21. Sri Reddy also joins the issue with the learned Senior Counsel appearing for the contesting respondents and submits that five survey numbers have not become seven survey numbers; on the other hand the five numbers are given different sub numbers.
22. The learned counsel for the petitioners submits that the notice as contemplated under Section 48-A(2) of the Karnataka Land Reforms Act, 1961 ('the said Act' for short) and its corresponding Rule (Rule 19 of the Karnataka Land Reforms Rules, 1974) was not issued. He submits that the petitioners cannot be penalized for the contesting respondents' not showing the extent of the land in each survey number and the granting of the occupancy rights in the unsought lands, by the Tribunal.
-20-
23. The last submission urged by Sri Reddy is that the delay of 34 years in filing this petition is not fatal to the petitioners' case, because the petitioners cannot be held to be guilty of the delay for the simple reason that the Tribunal has not sent the copy of the impugned order to the petitioners, which is a mandatory requirement under sub-section (6) of Section 48-A of the said Act.
24. Sri Shashidhar S.Karmadi, the learned High Court Government Pleader submits that the Form No.7 application is in respect of the adjoining lands at five survey numbers. On being asked whether Section 48- A(2) notice was sent to the petitioners' father, he answers that it is not knowable from the records. He submits that it cannot be ascertained as to on what date the notice, if any, was served on the petitioners' father. On being asked whether the first respondent Land Tribunal's order was sent to B.H.Parameshwara -21- Rao, as required under Section 48-A(6), he submits that the records are not indicative of anything.
25. Sri V.Vishwanath, the learned counsel for the contesting respondents seeks leave of the Court to make further submissions. He is permitted to do so.
26. He submits that the original records were produced by the Tahsildar in O.S.No.3311/2011 as per the Civil Court's order. When the records were sent back to the Tahsildar, many papers started missing from the records. When this was brought to the notice of this Court, it directed the concerned Tahilsdar to explain how it has happened. Then he produced the scanned copies of some of the missing documents and that the Annexure R2 is one such document.
27. Sri Vishwanath submits that the survey number 5 has nothing to do with the old survey number
53. It is not even his case that those lands were being -22- tilled by Munibyrappa. As there is unassailable documentary evidence to show that Parameshwara Rao had the knowledge of the passing of the Tribunal's order in 1977 and that the fourth petitioner's has its knowledge way-back in 1993, the petitioners are not justified in virtually demanding the roving enquiry at this length of time and after 34 years of the passing of the impugned order.
28. Sri Sadashiva Reddy, the learned counsel for the petitioners seeks leave of the Court to make further submissions. He submits that the Division Bench of this Court, by its judgment, dated 31.10.2012 passed in W.A.No.5276/2011 a/w. W.A.No.5277/2011 has condoned the delay of 31 years in challenging the Land Tribunal's order noticing that there was no change in the mutation entry. He read out the first part of para 7 which as follows:
-23-
"7. The argument was there is a delay of 31 years in challenging the said order. Therefore, whatever may be the cause, it is settled principle of law that things which are settled should not be unsettled. If things have settled this Court should not unsettle things. There are no two opinions about this. The material on record discloses even after so called grant of occupancy rights the petitioner's name continued in the revenue records. If really there was an order of grant and he was in possession and was cultivating the land the mutation entries should have been made in the name of the third respondent. No such mutation entries are produced to show that immediately after issuance of Form No.10 his name was entered. ......................."
29. Sri Sadashiva Reddy sought to draw support from this Court's decision in the case of Y.KICHAPPA SETTY vs. SOMANNA NAIKA AND ANOTHER reported in ILR 1977 Kar.1323 for advancing the submission that if the Land Tribunal grants the occupancy rights in -24- respect of the portions of lands at survey numbers which are not demarcated and which are not specified by the boundaries, the order can be said to be suffering from serious infirmity.
30. Sri Vishwanath, the learned counsel for the respondent Nos. 2 to 4 joins the issue with Sri Sadashiva Reddy by stating that the Division Bench in W.A.No.5276/2011 a/w. W.A.No. 5277/2011 set aside the Land Tribunal's order, as no notice was served on the petitioner, the address furnished itself was wrong; fraud and misrepresentation had taken place. The third party interest had not come in and the change in the mutation entry had not taken place. However, in the instant case, the records disclose that the notice was served on Parameshwara Rao under whom the petitioners claim. Objection was raised, suits were filed, shares were allotted and re-allotted, some portions of the lands in question have come to be sold to the third parties. The possession of some portions of the lands in -25- question are no longer with the respondent Nos. 2 to 4. Therefore this petition is liable to be rejected, so submits Sri Vishwanath.
31. The submissions of the learned advocates have received my thoughtful consideration. If this petition is to be considered on merits, the petitioners have to cross over the first hurdle of delay and laches. This petition is filed after 34 years of the passing of the impugned order by the Land Tribunal. It is the emphatic case of the petitioners that late B.H.Parameshwara Rao, the husband of the first petitioner and the father of the petitioner Nos.2 to 6 had no notice of the proceedings before the Land Tribunal, though the said B.H.Parameshwara Rao was the recorded owner of the lands in question. It is the further case of the petitioners that in April 2007 the respondent Nos.2 to 4 started interfering in the possession of the petitioners driving the petitioners to file O.S.No.3311/2011. The respondents filed the written statement on 25.6.2011 -26- disclosing that the Land Tribunal has granted the occupancy rights in favour of Sri Munibyrappa. It is thereafter that the petitioners have obtained the copy of the impugned order and other documents and have instituted this petition.
32. I have browsed through the L.C.R.s. The perusal of the order-sheet of the Land Tribunal reveals that the petitioners' brother Sri B.H.Shamboji Rao was present on several dates of hearing. The order sheet bears the signature of the said B.H.Shamboji Rao. The order sheet, dated 27.1.1977 states that Hanama Bai, Chikkamma Bai, Lakshmi Bai and daughters of Hanumantha Rao and Saraswathi and B.H.Shamboji Rao were present. The order sheet also reveals that B.H.Parameshwara Rao's another sister, Jaya Bai was not present. What can be safely presumed from this is that the pendency of the proceedings before the Tribunal was known in the family circle of B.H.Parameshwara Rao. -27- The petitioners, who claim under B.H.Parameshwara Rao have not filed any affidavits of Hanama Bai, Chikkamma Bai, Lakshmi Bai, Saraswathi and B.H.Shamboji Rao denying their signatures/thumb impressions and their presence on 27.1.1977.
33. Further, the records contain the telegram, dated 27.1.1977 given by B.H.Parameshwara Rao. It reads as follows: "Ill health, not possible to attend, prays adjournment." The xerox copy of the telegram is produced as Annexure-R1 with the statement of objections of the contesting respondents. The Tribunal has misrecorded that the said telegram is sent by Parameshwar Rao's son. But such an innocuous error has not materially affected the case.
34. The telegram is followed by a letter, dated 14.10.1977 from B.H.Parameshwara Rao. In the said letter, he has indicated his objections to the fixation of -28- the compensation for his lands. In the said letter, he has also confirmed his receiving the notice, dated 12.10.1977 from the Tahsildar and his sending the telegram thereto. He has sought re-enquiry in the matter. The signature of B.H.Parameshwara Rao on the letter, dated 14.10.1977 (Annexure-R2) is being seriously disputed by the petitioners. Even assuming that such a confirmatory letter was not issued by B.H.Parameshwara Rao, the petitioners cannot overcome the issuance of the telegram.
35. The fourth petitioner B.P.Lakshman Rao has submitted a letter, dated 1.2.1993 (Annexure-R4) to the Tahsildar. In the said letter, the petitioner No.4 refers to the paper publication regarding the taking of the possession of the lands and the announcement of the `30/- compensation. He has sought to know why the lands are acquired. He has sought the full particulars of the case from the Tahsildar. The signature on -29- Annexure-R4 prima facie tallies with the signature of the petitioner No.4 found on the vakalath.
36. It is also not known why the petitioners delayed the filing of the suit for 4 years. In paragraph No.4 of the memorandum of the writ petition, the petitioners say that the contesting respondents attempted to dispossess them in April 2007. They have filed the suit in April 2011. The contesting respondents have immediately filed the written statement and brought to the notice of the civil court the passing of the impugned order by the Land Tribunal.
37. The facts of the instant case and the facts of the decisions relied upon by the petitioners are entirely different. I am unpersuaded to accept the version of the petitioners that they were not aware of the proceedings of the Land Tribunal. When the records indicate that Parameshwar Rao and his son B.D.Lakshman Rao, the petitioner No.4 herein had the knowledge of the -30- proceedings of the Land Tribunal and when the delay of 34 years is not satisfactorily and cogently explained, the delayed challenge is not entertainable and the re- opening of the settled matter is not permissible. Without expressing any opinion on the merits of the case, I reject this petition on the ground of delay and laches. No order as to costs.
Sd/-
JUDGE Cm/-