Karnataka High Court
Sri Arasappa vs State Of Karnataka on 27 January, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JANUARY, 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.26993/2015 (KVOA)
BETWEEN:
SRI. ARASAPPA,
S/O LATE SRI MUNIYAPPA,
AGED ABOUT 80 YEARS,
R/O ADDEVISHWANATHAPURA VILLAGE,
HESARAGHATTA HOBLI,
BENGALURU NORTH (ADDL.) TALUK,
BENGALURU DISTRICT-562 163.
REPRESENTED BY HIS SON AS GPA HOLDER,
SRI MUNIYAPPA,
S/O ARASAPPA,
AGED ABOUT 54 YEARS,
R/O ADDEVISHWANATHAPURA VILLAGE,
HESARAGHATTA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU DISTRICT-562 163.
... PETITIONER
(BY SRI K. ABHINAV ANAND, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPTD. BY ITS SECRETARY TO GOVT.
(LAND GRANTS) REVENUE DEPT,
M. S. BUILDING,
BENGALURU-560 001.
2. THE TAHSILDAR,
BENGALURU NORTH (ADDL.) TALUK,
2
YALAHANKA,
BENGALURU-560 064.
3. SRI. AKKANNAPPA,
S/O LATE SMT. ARASAMMA,
AGED ABOUT 61 YEARS,
R/O THIMMEGOWDANA
HOSAHALLI VILLAGE,
KASABA HOBLI,
DEVANAHALLI TALUK,
BENGALURU DISTRICT-562110.
... RESPONDENTS
(BY SMT. SAVITHRAMMA, HCGP FOR R1 & R2;
SRI M. SREENIVASA, ADVOCATE FOR C/R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DTD.19.6.2015 PASSED BY THE LEARNED I
ADDITIONAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU IN M.A.NO.114/2006 VIDE ANNEXURE-A AND
FURTHER QUASH THE ORDER DATED 3.4.1996 PASSED BY
THE LEARNED RESPONDENT NO.2 VIDE ANNEXURE-B.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner who is the brother of 3rd respondent's mother late Smt.Arasamma is before this Court for a writ of certiorari to quash the impugned order dated 19.06.2015 made in M.A.No.114/2006 on the file of the I Addl. District Judge, Bengaluru Rural 3 District, Bengaluru, as per Annexure-A and also quash the order dated 03.04.1996 passed by the 2nd respondent in No.HOA.CR.33/1991-92, as per Annexure-B and to issue a writ of mandamus and remanding the matter to the 2nd respondent to hold enquiry afresh with regard to re-grant of the lands in question, in accordance with law.
2. It is the case of the petitioner that Sy.No.23 measuring 1 acre 7 guntas, Sy.No.79 measuring 7 acres 16 guntas of Addevishwanathapura village, Hesaraghatta Hobli, Bengaluru North (Addl.) Taluk, Bengaluru Taluk, are Thalawar service inam lands of the said village under the provisions of the Karnataka Village Offices Abolition Act, 1961, ('KVOA Act' for short).
3. According to the petitioner, one Muniyappa @ Kunta Thalawarappa was the original barawardar of Addevishwanathapura village and he was serving the inferior Thalawar village office of Addevishwanathapura 4 village and enjoying the lands in question as emoluments in lieu of the service rendered to Thalawar office till his death. After the death of Muniyappa @ Kunta Thalawarappa, his son i.e., the petitioner succeeded to the job of Thalawar and continued to enjoy the possession and enjoyment of the said lands.
4. It is the further case of the petitioner that after the KVOA Act came into force, the lands in question stood resumed to State Government under Section 4 of the KVOA Act. The petitioner being the Thalawar of Addevishwanathapura village was entitled to get the lands in question re-granted in his favour under the provisions of the KVOA Act. He filed an application before the concerned Revenue Officers seeking re-grant of the lands in question. But it was considered for a considerable period. The petitioner continued his request through representations. However, in the year 1991, the petitioner's application was taken on file by 5 the 2nd respondent Tahsildar having local jurisdiction and powers under the KVOA Act and 2nd respondent could not hold the enquiry as per the provisions of the KVOA Act and Rules and also under the relevant provisions of the Karnataka Land Revenue Act. Thereafter, petitioner appeared before the 2nd respondent right from 04.11.1991 till 27.03.1992. The petitioner was not allowed to produce the relevant documents in support of his case. Though the case was taken on 27.02.1992, 27.03.1992, 20.04.1992, no enquiry was conducted and ultimately, passed the impugned order on 03.04.1996 regranting the lands in favour of the petitioner as well as mother of the 3rd respondent, jointly.
5. It is the further case of the petitioner that in the year 2006, the 3rd respondent tried to interfere with the possession of the lands stating that his mother has been granted some portions of the lands in question by 6 the 2nd respondent. Then the petitioner immediately approached the 2nd respondent and applied for certified copy of the order and obtained the same. When the petitioner questioned the concerned officials in the office of the 2nd respondent as to why the order dated 03.04.1996 was not communicated to him, no satisfactory reply was given to him. He obtained the copy of the order dated 03.04.1996, came to know that 3 acres of land in Sy.No.79 and 10 guntas in Sy.No.23 were granted to the 3rd respondent and his mother jointly.
6. It is the further case of the petitioner that the 3rd respondent's mother Smt. Arasamma being the elder sister of the petitioner was given in marriage to one Sri Doddaiah of Thimmegowdana Hosahalli, Kasaba Hobli, Devanahalli Taluk, prior to KVOA Act came into force. He was serving the Thalawar office of that village. Arasamma was not the member of the paternal family 7 as on the Act came into force w.e.f. 01.02.1963 as she was given in marriage and living in her matrimonial home at Thimmegowdana Hosahalli. After the death of Doddaiah his son i.e., the third respondent herein continued to serve the Thalawar office of Thimmegowdana Hosahalli. It is his further case that the father of the 3rd respondent who was serving the Thalawar office of Thimmegowdana Hosahalli became entitled for re-grant of Thalawar Inam lands of that village. After the KVOA Act came into force, Doddaiah, i.e., husband of Arasamma and father of the third respondent applied for re-grant of Thalawar Inam lands of Thimmegowdana Hosahalli in Kasaba Hobli of Devanahalli Taluk in the year 1979 before the Tahsildar, Devanahalli, who re-granted the lands in Sy.Nos.20 and 33 of that village in favour of the third respondent and others by order dated 09.10.1980. The said order when challenged before the District Court in M.A.No.57/1995 by one Muninarasamma, it was set 8 aside by order dated 05.02.2007 granting the third respondent with some portions of Thalawar Inam lands. The third respondent and his mother continued to stay at Thimmegowdana Hosahalli. There was no occasion for them or to Doddaiah to serve the Thalawar office of Addevishwanathapura village and it was only the petitioner who was serving the Thalawar office, till the KVOA Act came into force.
7. It is the further case of the petitioner that after he came to know of the impugned order, he had filed an appeal under Section 3(2) of the KVOA Act in M.A. No.114/2006. The learned I Addl. District Judge passed order dated 19.06.2015 on I.A.No.1 for condonation of delay instead of passing the judgment on the appeal and come to the conclusion that delay cannot be condoned and rejected the I.A. No.1 consequently dismissing the appeal. Therefore, the petitioner is before this Court.
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8. The third respondent filed statement of objections and specifically contended that the very writ petition is filed wholly misconceived, unsustainable and not maintainable either in law or on facts. The conduct of the petitioner disentitles him to equitable relief at the hands of this Court and contended that there is no infirmity in the order passed by the Tahsildar or the District Judge.
9. The third respondent further contended that the petitioner has totally suppressed the material facts with regard to the relationship of the petitioner and to that of the mother of the third respondent/ Smt. Arasamma who are none other than the children of Muniyappa who was the original village officer of Addevishwanathapura village. The learned District Judge has clearly recorded a finding that the third respondent and his mother have been residing in the same village right from her marriage and even prior to that date and dismissed the 10 appeal on the ground of delay as well as on merits. It is further contended in the statement of objections that after the death of Muniyappa, the petitioner and Smt. Arasamma jointly filed an application to the Tahsildar requesting to re-grant Talawar Inam Land in their favour. The Tahsildar after holding necessary enquiry and spot inspection and also actual physical possession of the petitioner and the mother of the third respondent/Smt. Arasamma and an extent of 3 acres in Sy.No.79 and 10 guntas in Sy.No.23 in favour of Smt. Arasamma. In the very same proceedings, an extent of 3 acres 16 guntas in Sy.No.79 and 10 guntas in Sy.No.23 of Addevishwanathapura village was regranted in favour of the petitioner. At that time of the regrant, neither the petitioner nor any body objected for regrant and it was in the nature of consent order. The petitioner kept quiet for ten years from the date of re- grant and presented an appeal without explaining the delay making false allegations against the mother of the 11 third respondent. The District Judge after verifying the records such as mahazar, spot inspection report, voter ID cards and ration card, has rightly rejected the appeal and also contended that provisions of Section 5 of the Limitation Act is not applicable to the provisions of KVOA Act which is a special enactment.
10. It is further contended that as on the date the KVOA Act came into force, all the service inam lands vested with the State Government. In view of the death of the father of the petitioner and grand father of the 3rd respondent, the petitioner and the third respondent and his mother Smt. Arasamma who have been in possession and enjoyment and cultivating the land to an extent of 3 acres 16 guntas by the petitioner and to an extent of 3 acres by the third respondent and his mother in Sy.No.79 of Addevishwanathapura village. Apart from that, they have also been in possession of the land measuring 20 guntas in Sy.No.23 of the same 12 village. It is the further case of the third respondent that the petitioner, the third respondent and his mother jointly made an application to the Tahsildar seeking for re-grant in their favour as per their possession and enjoyment. It is also contended that the order dated 03.04.1996 is in the nature of consent order. Therefore it was not permissible for the petitioner to question the same after lapse of ten years before the District Court. It is further contended that the revenue authorities have mutated the revenue entries in the name of the applicants as per the order passed by the Tahsildar and the present writ petition came to be filed at the instance of real estate middle men with an oblique motive to see that the third respondent should not sell the lands in question etc., prays for dismissal of the writ petition.
11. I have heard the learned counsel for the parties to the lis.
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12. Sri Abhinav Anand, learned counsel for the petitioner vehemently contended that the impugned order passed by the I Addl. District Judge as well as the Tahsildar are erroneous, contrary to the material on record. The petitioner who is an illiterate person has no knowledge of law of limitation and approached the District Court explaining delay. The District Court without reference to merits of the case, proceeded to dismiss the appeal only on the ground of delay of ten years. He further contended that under the scheme of the KVOA Act, only the person who was cultivating the land can file application and the third respondent's mother Arasamma was already married and residing with her husband prior to coming into force of the KVOA Act. Therefore, the Tahsildar has no jurisdiction to divide the properties between the parties in terms of Annexure-B. Under the provisions of the KVOA Act, on behalf of all the persons, only barawardar can file application for re-grant. If any interse dispute, the 14 aggrieved party has remedy to file a suit for partition. Therefore, the Tahsildar as well as the learned District Judge should not have passed the impugned orders.
13. Learned counsel further contended that the substantial right of the parties should be decided and should not dismiss the appeal on technicality. The District Judge has not considered the judgment relied upon by the learned counsel for the petitioner. He further contended that the Courts are meant for doing substantial justice and should not dismiss on the ground of technicality. In support of his contention, learned counsel sought to rely upon the judgment of this Court in the case of Patel Veerabasappa (dead) by LRs Vs. Smt. Basamma (dead) by LR and another reported in 1996(2) KLJ 102. He also relied upon the judgment of the Hon'ble Supreme Court in the case of Naubat Ram Sharma vs. Addl. District Judge II, Moradabad and others reported in AIR 1987 SC 15 1352. He made reference to paragraph 3 and contended that, "ordinarily a litigant does not stand to benefit by lodging an appeal late. When substantial justice and technical considerations 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". Therefore, he sought to allow the present writ petition by quashing the impugned order passed by the District Judge and the Tahsildar as per Annexures-A and B in the writ petition.
14. Per contra, Sri M.Srinivasa, learned counsel for the respondent No.3 sought to justify the impugned orders passed by the District Judge as well as Tahsildar and strenuously contended that the petitioner suppressed all the material facts in the present writ petition and he has not come to the Court with clean hands. Admittedly, the petitioner, mother of the third 16 respondent and another filed joint application before the Tahsildar for regrant in the names of all the persons jointly. The order was passed by the Tahsildar on 03.04.1996 and the mutation came to be effected in MR No.101/1995-96 and are in joint possession even after regrant. The petitioner who is aware of the fact of the order passed by the Tahsildar on 03.04.1996 and filed an application for obtaining certified copy of the order on 05.02.2002 and filed appeal in 2006. Absolutely there is no explanation for the delay of more than ten years.
15. Learned counsel for the third respondent also contended that considering the joint application filed by all the parties and considering the entire material on record, the Tahsildar re-granted the land. Same has been reiterated by the District Judge and considering both the case on merit as well as on delay, dismissed the appeal. Therefore, he sought to dismiss the present 17 writ petition. In support of his contention, learned counsel sought to rely on the judgment of this Court in the case of Narayanaswamy and others vs. The Tahasildar, Devanahalli Taluk and others reported in ILR 2010 KAR 4429 and also unreported decision of this Court in W.P.No.10902/ 2014 dated 02.12.2014. Learned counsel also relied on Annexure-R7/partition deed, Annexure-R9/GPA. Therefore, he sought to dismiss the present writ petition.
16. Smt.Savithramma, learned HCGP for respondents 1 and 2 sought to justify the impugned order passed by the Tahsildar and the District Judge and contended that since the petitioner, mother of the third respondent and another filed application before the Tahsildar under Section 5 of the KVOA Act for regrant jointly, the Tahsildar, after holding detailed enquiry and after inspecting the spot came to know that petitioner as well as mother of the third respondent are cultivating the 18 lands jointly and therefore, re-granted the lands in favour of the petitioner and the third respondent jointly. Same is in accordance with law. Though petitioner was aware of the order of the Tahsildar in the year 1996 itself, he did not file the appeal in time. Since the appeal was preferred after a lapse of ten years, the District Judge has rightly dismissed the appeal on the ground of delay and also on merits and therefore sought to dismiss the writ petition.
17. In view of the aforesaid rival contentions urged by the learned counsel for the parties to the lis, the only point that arises for consideration is:
"Whether the impugned order passed by the learned District Judge dismissing the appeal confirming the order of the Tahsildar regranting the lands in favour of the petitioner as well as the mother of respondent No.3 is justified in the facts and circumstances of the present case?"19
18. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.
19. It is not in dispute that the land bearing Sy. No. 23 measuring 1 acres 7 guntas, Sy. No. 79 measuring 7 acres 16 guntas are agricultural dry lands situated at Addevishwanathapura village, Hesaraghatta Hobli and are Thalawar Service Inam lands. It is also not in dispute that the father of the petitioner and Smt. Arasamma i.e., third respondent's mother was barawardar of the Addevishwanathapura village. In the light of the Karnataka Village Offices Abolition Act, 1961, the petitioner, third respondent's mother - Arasamma and another who were cultivating the lands, filed an application jointly before the Tahasildar on 08.01.1996 in respect of the lands in question 20 requesting to re-grant the said lands in their names jointly. It is also not in dispute the Tahasildar after holding enquiry and considering the entire material on record by an order dated 03.04.1996 has re- granted the lands in favour of the petitioner to an extent of 10 guntas in Sy.No.23, 3 acres 16 guntas in Sy.No.79; 10 guntas in Sy.No.23 and 3 acres in Sy.No.79 in favour of Arasamma. It is also not in dispute that the petitioner was heard before passing of the impugned order by the Tahasildar on 03.04.1996. It is an admitted fact that after the re- grant of the land in the joint names of the petitioner and mother of the 3rd respondent, the jurisdictional Tahasildar mutated the revenue records in terms of the re-grant order. From 03.04.1996 till filing of the appeal in the year 2006 the mutations were entered both in the names of the petitioner and mother of the 3rd respondent Arasamma in respect of lands re- 21 granted to them jointly. After lapse of 10 years 2 months, the petitioner filed an appeal under the provisions of Section 3(2) of Karnataka Village Offices Inam Abolition Act before the I Additional District Judge, Bangalore Rural against the orders passed by Tahasildar contending that he is illiterate and hence, he was not aware of the law of limitation and the appellant has continued to be in possession and enjoyment of the properties. He was also not aware of the orders passed by Tahasildar and he came to know only in the year 2002 when he approached the Tahsildar. The learned District Judge while considering the appeal on merits as well as on the ground of delay, dismissed the appeal.
20. It is also not in dispute that both the petitioner and mother of the 3rd respondent were continued to 22 be in possession of lands in question and their names appeared in the revenue records as barawardars and they are the successors of the Thalawar office. The present petitioner and mother of the 3rd respondent are brother and sister. They have filed an application jointly before the Tahasildar under the provisions of Section 4 of the KVOA Act. The Tahasildar after obtaining the report from the jurisdictional Inspector and after considering the entire material on record has proceeded to pass the impugned order in the year 1996. The relationship between the parties is not in dispute. It is also not in dispute that both the petitioner and mother of the 3rd respondent and one Ankannappa filed joint application for re-grant. So also it is not in dispute that the Tahasildar has granted 16 guntas more in favour of the petitioner. When they have filed an application jointly for re- 23 grant, the Tahasildar after drawing the mahazar by the revenue authorities concerned and after considering the entire material on record has proceeded to pass the re-grant order. Once the application filed jointly for re-grant, after lapse of 10 years 2 months, it is not open for the petitioner to challenge the said order. He is estopped from challenging the same in view of the promissory estoppel. The District Judge considering the entire material on record has recorded a specific finding of fact that on perusal of the records, it reveals that as per the Voter I.D., Arasamma is residing at house No. 18 situated at Addevishwanathapura village from 1997. Even the ration card produced is in the name of Arasamma showing that she is residing at Addevishwanatha pura village. The petitioner has not explained the delay of 10 years 2 months in approaching the District Court while filing appeal 24 under Section 3(2) of the KVOA Act. Therefore the District Judge considering the entire material on record has dismissed the appeal.
21. It is not the case of the petitioner before the Tahasildar that even though they have filed joint application that she is not entitled for re-grant in view of the KVOA Act came into force, the Tahasildar after holding detailed enquiry has re- granted the lands in the year 1996. The petitioner filed appeal after lapse of more than 10 years 2 months knowing fully well the mutation and revenue entries in respect of the lands in question was effected in the year 1995-96 and absolutely no explanation is offered to condone the inordinate delay of 10 years 2 months. In the absence of any explanation offered by the petitioner, the contention of the learned counsel for the petitioner that in view 25 of the law declared by the Hon'ble Supreme Court in the case of Collector, Land Acquisition, Anantnag - vs- Katiji reported in AIR 1987 SC 1352 cannot be accepted.
22. There is no dispute with regard to the law laid down by the Hon'ble Supreme Court in the said case. When substantial justice and technical considerations 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. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account 26 of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice- oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. This Court is in full agreement with the principle laid down by the Hon'ble Supreme Court in the case stated supra, but the facts in the present case clearly reveal that the petitioner and 3rd respondent filed an application jointly before the Tahasildar under Section 5 of KVOA Act requesting him to re-grant jointly. It is also not in dispute that the Tahasildar after drawing the mahazar and on considering entire material on record, re-granted the lands jointly. The mutation and RTC was effected in the 27 year 1995-96 itself on the basis of re-grant order. Therefore, the petitioner was aware of the said fact in the year 1995-96 itself as he was present before the Tahasildar.
23. If the petitioner was not aware of the order passed by Tahasildar or that he was not a party to the proceedings or in the absence of joint application filed by the petitioner and the mother of the 3rd respondent, this court should adopt liberal approach in condoning the delay in filing the appeal. But very strangely in the present case, both petitioner and the 3rd respondent's mother are- brother and sister, have claimed that they are the legal representatives of late Muniyappa, who is father of the petitioner - original barawardar and hence they have filed the application jointly requesting Tahasildar to re-grant as they were 28 cultivating jointly. When the appeal is filed no explanation is offered to condone the delay of 10 years 2 months. The law declared by the Hon'ble Supreme Court applies to the litigants, who approach the court with sufficient cause and clean hands, but in the present writ petition, the petitioner has suppressed the material facts when he and the 3rd respondent's mother have jointly filed an application for re-grant and therefore, he cannot contend that he was not aware of the proceedings before the Tahasildar even though the mutation was effected in the year 1995-96. Therefore, the facts and circumstances of the present case and the facts and circumstances of the judgment relied upon by the learned Counsel for the petitioner are entirely different and has no application to present case. 29
24. Learned Counsel for the petitioner also relied upon another judgment of this Court in the case of Patel Veerabasappa (Dead) by L.Rs. -vs- Smt. Basamma (Dead) by L.R. and another reported in 1996(2) Kar. L. J. 102 to the effect that while considering the application for re-grant of land holder of the village office on payment of occupancy price to Government, the Tahasildar to entertain only one application from holder of erstwhile village office and to make only one grant, person claiming to be member of joint family of holder cannot make application and property would be available for partition only after re-grant. Partition is a matter to be decided by competent Court. The Tahasildar has no power to partition the property while passing the re-grant order. In that case, the petitioner claiming to be the member of the joint family had not filed any application for re-grant and under 30 those circumstances, this Court held that if there is any dispute in respect of the rights of the family members of the barawardars, the concerned member has to approach the Civil Court for partition.
25. Admittedly, in the present case, it is not the case of the petitioner that he has filed an application alone and mother of the 3rd respondent claiming to be member of the family had not filed an application jointly along with petitioner and the Tahasildar has re-granted the lands without there being an application. Admittedly in the present case, both the petitioner as well as the mother of the 3rd respondent Arasamma claimed that they are the legal representatives of late Muniyappa, who was barawardar of Addevishwanathapura had filed a joint application for re-grant contending that they 31 are cultivating the lands jointly and hence, the Tahasildar has re-granted the land in their joint names after considering the entire material on record. Therefore, the facts of the judgment relied upon by the learned Counsel for petitioner stated supra has no application to the facts and circumstances of the present case.
27. The Apex Court while considering the principle of law that 'delay defeats equity' in the case of S.S. Balu and Another - vs- State of Kerala reported in (2009)2 SCC 479 at para-17 has held as under:
"17. It is also well settled principle of law that "delay defeats equity". Government Order was issued on 15.1.2002. Appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and the State of Kerala preferred an appeal there against, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approaches 32 the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage. In New Delhi Municipal Council v. Pan Singh and Ors. (2007) 9 SCC 278, this Court held:
"16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, 33 the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction."
28. The Hon'ble Supreme Court while considering the provisions of Section 5 of the Limitation Act in the case of Shankara Co- operative Housing Society Limited -vs- M. Prabhakar and Others reported in 2011(5) SCC 607 at para 46 and 54 has held as under:
"46. Delay and laches is one of the factors that requires to be borne in mind by the High Courts when they exercise their discretionary power under Article 226 of the Constitution of India. In an appropriate case, the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his rights taken 34 in conjunction with the lapse of time and other circumstances"
"54. 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 own 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.35
(3) The satisfactory way of explaining delay in making an application under Articles 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."
29. When there is no dispute with regard to relationship, filing an application jointly for re-grant under the KVOA Act and also the fact that the re- grant order was passed in the year 1995-96, considering the petitioner and mother of 3rd 36 respondent as legal representatives of original barawardar Muniyappa as well as mutation was also effected in MR No. 101/1995-96, the petitioner could not have filed an appeal after a lapse of more than 10 years 2 months and absolutely no explanation is offered to condone the inordinate delay and the rights of the 3rd respondent cannot be deprived which was legally re-granted by the Tahasildar at this belated stage. Merely because the petitioner's brother filed an appeal after a lapse of more than 10 years 2 months and in the absence of sufficient cause shown for condonation of delay, the learned District Judge was justified in dismissing the appeal confirming the order passed by the Tahasildar dated 03.04.1996.
30. The material on record clearly indicates that the jurisdictional Tahasildar exercising his power under 37 Section 5 of the KVOA Act has re-granted the lands in view of the joint request made by the petitioner and the mother of the third respondent and the learned District Judge considering the entire material on record has dismissed the appeal mainly on the ground of delay and laches. The same is in accordance with law. The petitioner has not made out any ground to interfere with the impugned order passed by the District Court confirming the order passed by the Tahasildar by exercising the powers under Articles 226 and 227 of the Constitution of India. Accordingly, writ petition is dismissed.
Sd/-
JUDGE kcm/nsu/LL