Karnataka High Court
Dabulu Shedthi vs State Of Karnataka And Ors. on 15 March, 2005
Equivalent citations: 2005(5)KARLJ575
Author: Anand Byrareddy
Bench: Anand Byrareddy
JUDGMENT S.R. Nayak, J.
1. The Writ Petition No. 35385 of 1997 filed by the appellant herein calling in question the validity of the order of the Land Tribunal, Karkala dated 3-10-1981 is dismissed by the learned Single Judge. Hence, the present writ appeal by the aggrieved writ petitioner.
2. The facts leading to the filing of the above writ petition be noted in the first instance in brief and they are as follows.--
The appellant claiming to be the tenant of certain lands including the land admeasuring 71 cents comprised in Sy. No. 41/3 of Bola Village, Karkala Taluk (hereinafter shall be shortly referred to as 'scheduled land') filed Form 7 for declaration under Section 45 of the Karnataka Land Reforms Act, 1961 (for short, 'the Act'). The Land Tribunal after conducting enquiry, by its order dated 3-10-1981, granted occupancy rights of 86 cents of land in Sy. No. 41/2A, 1 acre 2 cents of land in Sy. No. 41/2C, 4 cents of land in Sy. No. 375/1 and 1 acre 69 cents of land in Sy. No. 375/2. It is quite apparent from the order of the Land Tribunal dated 3-10-1981 that the Land Tribunal has not granted occupancy rights of 71 cents of land comprised in Sy. No. 41/3 though the said land was claimed by the appellant-tenant.
3. The appellant being aggrieved by the said order of the Land Tribunal dated 3-10-1981 filed W.P. No. 13135 of 1982 in this Court. Consequent upon the constitution of the Land Reforms Appellate Authority by amendment, the matter was transmitted to the Appellate Authority and subsequently on abolition of the Land Reforms Appellate Authority, the matter was retransmitted to this Court and the same was renumbered as W.P. No. 20318 of 1993. The said writ petition was dismissed by a Division Bench of this Court on 25-7-1994 for non-prosecution. The appellant/petitioner filed civil petition for setting aside of the default order dated 25-7-1994 and for restoration of the writ petition. That civil petition was heard by a Co-ordinate Bench of this Court and not being satisfied with the explanation offered by the appellant/petitioner for nearly four years delay in preferring the civil petition, the Division Bench, by its order dated 28-8-1997 dismissed the civil petition. While doing so, the Division Bench observed thus:
"An order was passed disposing of the matter on 25-7-1994 and application for recalling that order was made on 20-8-1997. We are usually very liberal in these matters in condoning the delay and recalling our orders. But considering the enormous amount of delay like 4 years in a matter of this nature, we do not think we should condone the delay in this case as the explanation sought to be offered is not satisfactory".
The order made by the Division Bench in the civil petition on 28-8-1997 was allowed to become final.
4. When the matter stood thus, the appellant/petitioner again filed W.P. No. 35385 of 1997 calling in question the very same order of the Land Tribunal dated 3-10-1981 which was earlier assailed in W.P. No. 13135 of 1982 (W.P. No. 20318 of 1993). In the interregnum, according to the appellant, the fifth respondent purchased the schedule land in the year 1985. It was contended before the learned Single Judge that the default order made by the Division Bench on 25-7-1994 and the order made by the Division Bench in the civil petition on 28-8-1997 would not operate as res judicata and therefore, the writ petition is maintainable. In support of that plea, reliance was placed on the judgment of the Supreme Court in Sheodan Singh v Daryao Kunwar, and also the judgment of this Court in S.N. Seshadri v Life Insurance Corporation of India and Ors., 1977(2) Kar. L.J. 176 The learned Judge having opined that the Division Bench having appreciated the explanation offered by the appellant in preferring the civil petition after a lapse of nearly four years and not having been convinced with the cause shown, dismissed the civil petition, refused to entertain the writ petition.
5. We have heard Sri S.P Shankar, learned Senior Counsel for the appellant. Sri Shankar would highlight at the threshold that it is a case where, great injustice has been done to the appellant-tenant by the Land Tribunal in not granting occupancy rights of the schedule land. It was contended that the documentary evidence would clearly go to show that the appellant was also tenant of the schedule land on the appointed date i.e., on 1-3-1974 and therefore, the schedule land vested in the State Government by virtue of the provisions of Section 44 of the Act. The State Government had no objection to grant occupancy rights of the schedule land in favour of the appellant-tenant. Having so highlighted, it was the farther contention of Sri Shankar that technicality should not come in the way of the Constitutional Court granting relief to the appellant who richly deserves it, and by granting that relief no prejudice would be caused to anyone else. Sri Shankar would place before us the very same judgments cited before the learned Single Judge to convince us that the order made by the Division Bench on 25-7-1994 dismissing the writ petition for default and the order dated 28-8-1997 dismissing the civil petition would not operate as res judicata and therefore, the writ petition is maintainable.
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 impermissible 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 28-8-1997. 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 Anr. v Labh Chand, . 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. When 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 petition 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 the same Court dismissing the 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 person respecting a matter on which his first writ petition was dismissal in limine by another learned Single Judge or a Division Bench of the 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 High Court exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any Bench of such Court refusing 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 for there could be no finality for an order of the Court refusing to entertain a writ petition. 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 fist writ petition 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 the ground of non-exhaustion of alternate remedy, has come to be accepted and followed as salutary rule in exercise of writ jurisdiction of Courts".
7. The observation of the Supreme Court that if subsequent writ petition in such fact-situation is permitted, it would encourage an unsuccessful writ petitioner to go on filing writ petitions one after the other in the same matter in the High Court, is quite apposite for the purpose of decision making in this case also. Our opinion does not rest on the doctrine of res judicata. Even assuming that the orders made by the Division Bench on 25-7-1994 and 28-8-1997 dismissing W.P. No. 20318 of 1993 for default and dismissing the civil petition respectively would not operate as res judicata, nevertheless, we can very well-uphold the order of the learned Single Judge on the premise of public policy which was highlighted by the Apex Court in para 20 of its judgment extracted above.
8. The following observation of the Supreme Court in para 27 of Rupa Ashok Hurra v Ashok Hurra and Anr., to which our attention was drawn by Sri Shankar in the course of the arguments, would in no way aid or support the case of the appellant/petitioner nor could it be a proper aid for decision making:
"27. In S. Nagaraj and Ors. v State, of Karnataka and Anr., 1993 Supp. (4) SCC 595, an application was filed by the State for clarification of the order passed earlier. It was urged by the petitioner that any modification or recalling of the order passed by this Court would result in destroying the principle of finality enshrined in Article 141 of the Constitution. Sahai, J., speaking for himself and for Pandian, J., observed:
"Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice".
The learned judge referring to the judgment of Raja Prithwi Chand Lal Choudhury v Sukhraj Rai and Ors., AIR 1941 FC 1, further observed:
"Even when there was not statutory provision and no rules were framed by the highest Court indicating the circumstances in which it could rectify its order the Courts culled out such power to avoid abuse of process or miscarriage of justice" ".
9. The precise question which falls for consideration, in this case, in fact, fell for decision making before the Supreme Court in Labh Chand's case, and the statements of law made in paras 19 and 20 of the judgment is the ratio for decision making in this case, not the general observations made in para 27 of that judgment in the peculiar facts and circumstances and context of the case. The general observation made in para 27 would not permit the Court to ignore the doctrine of delay and laches which is undeniably one of the grounds on the basis of which the Court can decline relief to a party. The well-accepted policy of law is that Courts help only diligent and not the indolent persons. The Court is not expected to extend its helping hand to a person who sleeps over his right. We need not dilate on this aspect further in view of the judgment of the Apex Court in Labh Chand's case. Apart from that, in this case, there is absolutely no satisfactory explanation for the inordinate delay of four long years.
10. Looking from any angle, it is not a fit case where we step in and entertain a stale claim made after twenty-four years after the impugned order was passed by the Land Tribunal.
The writ appeal is dismissed, however, with no order as to costs.
Sri Deshraj, learned Government Advocate is granted four weeks time to file memo of appearance for respondents 1 and 2.