Karnataka High Court
Maqdum vs The Deputy Commissioner & Ors on 24 January, 2019
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JANUARY, 2019
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
W.P.No.200139/2019 (KLR-RES)
BETWEEN:
Maqdum S/o Amiroddin
Aged about 27 years
R/o Maheboob Nagar
Colony, Basavakalyan
Dist. Bidar - 585 401
... Petitioner
(By Sri Ravi B. Patil, Advocate)
AND:
1. The Deputy Commissioner
Bidar District, Bidar - 585 401
2. The Assistant Commissioner
Basavakalyan
Mini Vidhan Soudha
Tq. Basavakalyan
Dist. Bidar - 585 401
3. The Tahasildar
Basavakalyan Taluka
Dist. Bidar - 585 401
2
4. The Commissioner
City Municipal Council
Basavakalyan
Dist. Bidar - 585 401
5. The President
Nhavi Barbar Society
Tripuranth
Tq. Basavakalyan
Dist. Bidar - 585 401
... Respondents
(By Smt. Arati Patil, HCGP for R1 to R3)
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India praying to quash the
impugned order in file No.LND/CR-81/2001-02, dated
15.10.2001 vide at Annexure-J issued by the first
respondent authority in favour of the fifth respondent as
illegal and arbitrary in nature and without jurisdiction
and direct respondent Nos.3 & 4-authorities from
causing any interference over the land of the petitioner
based on the impugned order of grant without due
procedure known to law.
This petition coming on for Preliminary Hearing,
this day, the Court made the following:
3
ORDER
The learned High Court Government Pleader is directed to take notice for respondent Nos.1 to 3.
2. The petitioner has filed the present writ petition seeking writ of certiorari to quash the order dated 15.10.2001 passed by the first respondent- Deputy Commissioner vide Annexure-J granting 20 guntas of land for the purpose of burial ground in favour of fifth respondent-Nhavi Barbar Society and writ of mandamus directing respondent Nos.3 and 4 authorities from causing any interference over the land of the petitioner based on the impugned order of grant without due procedure known to law.
3. It is the case of the petitioner that he is the absolute owner and in possession of the land in Sy.No.98/1 measuring 1 acre 4 guntas out of 4 acres situated at Basavakalyan having purchased the same under the registered sale deed dated 19.03.2004 and all 4 revenue entries were entered in the name of the petitioner in respect of the said land. He would further contend that the land of the petitioner falls within the municipal limits of CMC Basavakalyan and all surrounding lands are developed into residential layouts. The President and Secretary of fifth respondent-Naavi Samaj Community (Barbar community) started interfering in the land of the petitioner claiming portion of the land abutting to the land of the petitioner as the graveyard and tried to extend the portion of the graveyard to the land of the petitioner.
4. Therefore, the petitioner was constrained to file O.S.No.100/2016 against the President, Vice President and Treasurer of the said community and obtained the judgment and decree of permanent injunction on 27.07.2017. Based on the representation made by the fifth respondent, the third respondent issued notice to 5 the petitioner on 26.12.2017 directing the petitioner to furnish the relevant documents and fixed the date of measurement for measuring the graveyard on 30.12.2017. The petitioner replied and furnished all the documents. Though the date of measurement of the land was fixed on 30.12.2017, the officials of the respondent Nos.2 and 3 along with the jurisdictional police had approached the land of the petitioner on 28.12.2017 without any authority of law and tried to remove the existing wall erected towards the northern boundary of the land of the petitioner. The same was resisted. Respondent Nos.3 and 4 lodged the complaint on 03.01.2018 before the jurisdictional police.
5. The jurisdictional Police registered the case in Crime No.4/2018 under the provision of Section 192(A) of the Karnataka Land Revenue Act, 1964 (for short 'the Act') and Sections 420 r/w 447 of IPC. It is stated at the bar that subsequently, the jurisdictional police have 6 filed 'B' report. On the request made by the petitioner, the jurisdictional police furnished copy of the alleged grant made in favour of fifth respondent by the Deputy Commissioner dated 15.10.2001 allegedly granting 20 guntas of land of the public road. Therefore, he made a representation before the authorities to obtain copy of the grant. The fourth respondent without any jurisdiction issued notice on 20.11.2018 contending that the first respondent-authority has granted 20 guntas of the land for the purpose of graveyard in favour of fifth respondent and directed the petitioner to furnish all relevant documents in support of his claim. After looking into the alleged grant order referred to by respondent Nos.3 and 4, the petitioner made a specific representation seeking cancellation of the grant illegally made in favour of the fifth respondent by the first respondent and contended that grant is contrary to the restriction put-forth under Section 94(A) Clause 4 of the Act. Since the land sought to be granted in favour of 7 fifth respondent is within the restricted area and is within the radius of 1 km., from the city and is abutting to the KSRTC bus stand and all surrounding lands are already developed into layout, the petitioner made a representation questioning the legality of the grant made in favour of the fifth respondent. Therefore, petitioner is before this Court for the relief sought for.
6. I have heard the learned counsel appearing for the parties to the lis.
7. Sri Ravi B. Patil, learned counsel for the petitioner has vehemently contended that the impugned order passed by the Deputy Commissioner granting 20 guntas of land in favour of fifth respondent which was meant for public road is erroneous and contrary to the material on record. He would further contend that when the fifth respondent tried to interfere and extend the graveyard portion into the land of the petitioner, the petitioner was constrained to file O.S.No.100/2016 and 8 obtained decree of permanent injunction from the competent civil Court which has reached finality. The cart-track road which was used by the general public ought not to have granted by the Deputy Commissioner without following the procedure as contemplated under Section 94(A) Clause 4 of the Act. He would further contend that the Deputy Commissioner before granting the land to fifth respondent has not followed the procedure as contemplated under the provisions of Sections 67 and 68 of the Act. He would further contend that he made representation as per Annexure-N before the Deputy Commissioner on 06.12.2018 but till today the Deputy Commissioner has not considered the same. Therefore, he sought to allow the writ petition.
8. Per contra, Smt. Arati Patil, learned High Court Government Pleader on taking notice to respondent Nos.1 to 3 sought to justify the impugned order passed by the Deputy Commissioner and contended that the 9 petitioner has no locus-standi to challenge the grant made in favour of the fifth respondent by the Deputy Commissioner exercising power under the provisions of Section 71 of the Act. She would further contend that the writ petition filed by the petitioner has to be dismissed on the ground of delay and laches and the petitioner has not come to the Court with clean hands. Therefore, he is not entitled to the relief. Hence, she sought for dismissal of the writ petition.
9. Having heard the learned counsel appearing for the parties and having carefully perused the entire writ papers, it is clear that the Deputy Commissioner as long back as on 15.10.2001 exercising his power under Section 71 of the Act, after following the procedure and after considering the entire material that the property in question is a government gairan land and it was old cart-track road, the same was granted in favour of fifth respondent-community as per the sketch for the special 10 purpose of burial ground. Admittedly, the present writ petition is filed on 09.01.2019 after lapse of more than 18 years. If the petitioner is aggrieved person, he ought to have invoked the alternative remedy of appeal under Section 49(c) of the Act within the time stipulated. On that ground also, the writ petition is liable to be dismissed in limine.
10. On careful reading of the entire pleadings of the writ petition, it would indicate that the petitioner has not stated when did he came to know about the impugned order and in the entire writ petition he has not assigned any single reason much less sufficient reasons to condone the inordinate delay of 18 years. Therefore, the writ petition is liable to be dismissed on the ground of delay and laches on the part of the petitioner. It is also not in dispute that, when some dispute arose between the parties, the very petitioner filed O.S.No.100/2016 against the fifth respondent and 11 others for permanent injunction on 03.06.2016 in respect of his property i.e., 1 acre 34 guntas in Sy.No.98/1. The said suit came to be decreed on 27.07.2017 granting permanent injunction to an extent of 1 acre 4 guntas. By the time he filed suit, the petitioner was aware of the fact that the land was granted in favour of fifth respondent. He was pursuing his remedy in respect of his property before the civil Court from 03.06.2016 to 27.07.2017. For more than 2 and half years, he kept quiet and he did not initiate any proceedings.
11. It is relevant to mention at this stage that the very petitioner filed the representation before the Deputy Commissioner on 06.12.2018 for cancellation of the grant made in favour of the fifth respondent- community. Even before the Deputy Commissioner considering the representation, he filed the present writ petition within one month i.e., on 09.01.2019 virtually 12 he is seeking two parallel remedies simultaneously before the Deputy Commissioner and as well as before this Court which is impermissible in law. Though the grant was made in favour of the fifth respondent in the year 2001 i.e., more than 18 years back, none of the citizens of Basavakalyan either protested the grant or obstructed the grant or interfered with the fifth respondent till day. All along, it is only the petitioner has initiated proceedings against the fifth respondent by way of the suit and by way of representation and the present writ petition. If really, it was a public road reserved by the concerned jurisdictional authorities, the other villagers except the petitioner would not have kept quiet for more than 18 years which clearly indicate that the petitioner is before this Court only to get his personal scores against the fifth respondent for his personal gain. The petitioner has not produced any material document before the Court to show that the land granted by the Deputy Commissioner in favour of 13 the fifth respondent was assigned for public road by the competent authorities at any point of time.
12. In the absence of any material documents produced to show that it was reserved for public road, the petitioner has no locus-standi to question the grant. Even otherwise, the petition has to be dismissed on the ground of delay and laches. Absolutely, no reasons are assigned in the entire petition with regard to delay. It is not the case of the petitioner that all the villagers have opposed or challenged the grant. The contention raised by the learned counsel for the petitioner in the writ petition that grant is prohibited in view of the provisions of clause 4 of Section 94-A of the Act cannot be accepted for the simple reason that the very provisions of Section 94-A pertains to regularization of certain cases of unauthorized occupation by constituting Committee etc. The Deputy Commissioner being the competent authority under the provisions of Section 71 of the Act 14 exercised his power and assigned the land in question for special purpose i.e., burial ground/graveyard of the fifth respondent-community after taking into consideration the entire material on record. On that ground also writ petition is liable to be dismissed.
13. It is well settled that the delay defeats equity to the other side. Admittedly, the petitioner has not explained the inordinate delay of 18 years. Therefore, he is not entitled for any relief before this Court. My view is fortified by the dictum of Hon'ble Supreme Court in the case of S.S.Balu and another vs. State of Kerala and others reported in (2009) 2 SCC 479 wherein at paragraph-17 it has held as under:
"17. It is also well-settled principle of law that "delay defeats equity". The Government Order wad issued on 15.1.2002.
The appellants did not file any writ
application questioning the legality and
validity thereof. Only after the writ petitions 15 filed by others were allowed and the State of Kerala preferred an appeal thereagainst, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approaches 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 NDMC v. Pan Singh this Court held: (SCC p.283, para 16) "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 grievance 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 16 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, 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."
14. It is not the case of the petitioner that the grant made by the Deputy Commissioner in favour of fifth respondent has affected the rights of the general public and it is not his case before this Court that the respondents should be directed to consider the representation. The first prayer is to quash the impugned order passed by the Deputy Commissioner dated 15.10.2001 and the second prayer is indirectly seeking injunction against respondent Nos.3 and 4 from causing any interference over the land of the petitioner 17 based on the impugned order. The petitioner's property is not the subject matter of this writ petition. This petition is filed challenging the order passed by the Deputy Commissioner granting 20 guntas of land for the purpose of burial ground. The entire pleadings, criminal case registered against the petitioner on the complaint made by the jurisdictional authorities and registering a case under Section 194-A of the Act and 420 r/w 447 of IPC clearly depicts that the petitioner has not come to the Court with clean hands, clean mind and clean heart. Such litigant should not be encouraged to abuse the process of this Court for his personal gain and vengeance against the fifth respondent after inordinate delay of 18 years. On that ground also, the writ petition is liable to be rejected.
15. It is not the case of the petitioner that surrounding villagers of Basavakalyan are aggrieved by the grant made in favour of the fifth respondent. 18 Basavakalyan is the Taluk headquarter there may be more than two lakhs residents, nobody have any grievance against the fifth respondent except the petitioner. This clearly indicates that the petitioner is before this Court only for personal gain. In view of the above, the prayer sought in the writ petition is devoid of merit. The petitioner has not made out any ground to interfere with the impugned order passed by the Deputy Commissioner in exercise of power under Articles 226 and 227 of the Constitution of India.
16. Accordingly, the writ petition is dismissed with costs of Rs.25,000/-. At this stage, Sri Ravi B. Patil, learned counsel for the petitioner requests the Court to reduce the amount of costs. Acceding to his request, in the interest of justice, costs is reduced to Rs.10,000/- payable by the petitioner to the Legal Services Authority of this Court within one month from the date of receipt of a copy of this order, failing which, 19 the learned Additional Registrar General is directed to recover the same as arrears of Land Revenue.
Sd/-
JUDGE NB* Ct: RRJ