Karnataka High Court
Smt Anjana Devi D/O Late Jayavathi vs State Of Karnataka on 5 August, 2010
Author: Anand Byrareddy
Bench: Anand Byrareddy
{N THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 5"' day or August. 2030
Before
THE HON 'BLE MR JUSTICE ANAND BYRAR§'E'D§'5f.,j: f _
Writ Petition 742.1/2QQ8_ '
Between: 1 A' ii '
Smt Anjana Devi; 58 yrs
D/0 late Jayavathi, Agriculturist
R/a Na1.kedabettu, Guthu House
Nitte Villge, Karkala Taluk y _ L _
Udupi District V A " _ Petitioner
(By Sri Przisanna V R.,A_Adv.)V,~ if Vi
.1 State of Karn'at;1k:._1 4 ~biy"i.t'iiVSecretz11'y
Department Gf Revenue
" V' E\/IE3 Building, Ba'r1'gal'0re. 1
.'-'
V'1v,;?;;1°.<i::"E7riE:€ii1aI'_};-- by its Chairman
'- A Karkz11'a.TaIuk, Udupi Eistrict
V Sum: Nar$Vi4'.M()i1thy, 85 yrs
ii VTW/0 '}:1fe anthu Moili
'sir' Kutti Moili, 63 yrs
.7 1):
Smt Kamala Meiithy, 60 yrs
6
i\.)
6 Sri Raghu Moili, 58 yrs
7 Sim Jalaja Moilthy, 55 yrs
8 Sri Bhoja Moili, 50 yrs
9 Sri Shyama Devadiga, 45 yrs
10 Smt Amani Moilthy, 40 yrs
1 1 Srnt Yashoda Moilthy, 35 yrs
R3 is the wife and 7-11 are N
Children of deceased,.--AnthuVMoilfy« i
All are r/a Ravindr'ai.'K;«as, }l_\litt-e " _' _ _
Village, Karkala T3.luki,iUdLipi.7' Respondents
(By Sri R Kumar,_.G§'3l:Vtlo.1' Rll_l,2;€i . Sri H Jayakar S'heitty. R94 l) ij . , W1-ttiii5e'tits£i:}>.ji t111dleriiiiArticl.es 226/227 of the Coristitution prayirigto order dated 1.10.198] -- annexure A by the Land Tribunal'.
Tlao Petition AcionTi_.i11g' on for Prel.iminary Hearing this day, V - Court fnixde __the_ fol l o'wing.: < QRDER i A Hiear"d_t.heilleii1'ned counsel for the petitioner.
" The petitioner claims that lands in several survey HUY%lI)€fS of- of Karkala Village and other lands were originally '5 owned by the joint family consisting of the petitioner and-.yother members headed by the grand mother of the pe.titioner~-one. who was the yajamanthi of the joint family. At'ter_ehreri ether,' Son Dharamaraja Bhandary had filed Tttait suit was settled by way of a cor11p1'om.ise,_ decree"
ordered by the court i.n terrns of the dated 28.7.1967. Under that her mother and other children weredaltlotteditheir The subject matter of the to the petitioner are indicated to petitiion. The petitioner claims that, she her in continuous possession of the same and there are.reve'nue'"records to reflect that they have 'continued iii;V.posssession"oyer the years. It is only in the month of respondents 3 to ll sought to disturb their possessi__on,__t'I1'at the petitioners were shocked to learn that the said it 7.4A"1'espondents '--vi/ere claiming the lands under the purported orders of _th_eTribuna1, granted under the provisions of the Karnataka '=La'ndi Reforms Act on l.l0.198l. It is thereafter, by further @ investigation, that the petitioners have learnt of the proceedings before the Tribunal where the lands were shown .b_el(jVngi:i'n,g"-«tpo one Appiamma who had nothing to do with the V' thereafter, seek to place the present challeingev on the . apart from the mother of the petitioner having been rrtade a party to the proceedings before thelvlifrriibunal, the having been claimed and the Tribunal halving: g1'an.ted.._'the'~same, is therefore :1 nullity in the eye oflaw and~--notwithsttaonding long lapse of time from the date'i--_1npug_ned. o.rder, lthiewpetitioners would be enabled to'q'ue.s_ii'on sarne theerder of the Land Tribunal is non--est siriCelit_ is not:p'aSsted'agai.nst the competent person and it is in this vein, i"theV'Ieai:neid_ Counsel would seek to urge further l'Co.ntentions-has to the orderiof'the Tribunal being vitiated. learned government pleader would point out from i the recordt.l1atViiAppiamrnzi is shown as the owner of the land, a spot " if"-iriispeetionhaving been held, the mother of the petitioner namely J_ayaVat'hi, was duly served with notice ofthe inspection and she has 6 Ln acknowledged the proceedings and hence would contend that, even if Jayavathi was the true owner, it is not correct to conten'd_.i'tvhat Jayavathi was totally unaware of the proceedings. In this background, the question is w;h'et.heritathepetitioh-eriiean be permitted to raise this cliztlleiige._a1"tei'i"a lapse' nine' years notwithstanding that the oVrder"ot'i"the T1'iibunat/imay be a nuility for having been passed againstv'p.e1*s--o:1 who was not competent to represent--t_he oiwneif'V.of.the.i'land". V Havi-ngtl regard ~thenshee1' eraux' of time, it cannot be said that this Couin at _this"rsremotenpoint of time, would still be in a position to addr'ess"theV 'eon:_roversy on the footing that the petitioner 'was totziiiy,;~nnawa.re of""the order and could question the grant of o'L:.<_;ui;:;&ant:3*_ :i'i-g11'ts "ini_i7av()ui' of the several respondents herein at this i rem.ote~..point oftiine.
r Vifiavingi regard to the following observation in the II Ed. Of _iSee'fvai "Constitutional Law on the 44"} amentlment at Page lvi of ~ ..:Vo'iui:ne 1..
§ "53AA The grant ofa Writ is discretionary. And'''«._ although Art. 32 confers a fundamental providing remedies for the eriforcenient l"
fundamental rights by empowering the « _ issue appropriate writs, our Sup. h'eAldv._.:t'i:.gt.iV_Litit rufes of Evidence, rules of Proee_diire., Stat_p!te'sv of Limitation in Civil. and even i.n°'e.riminai.cases,r-gtndsithe' it doctrine of res jadicata, all ap_ply._to~r_ythe ein't'<>r,(;enifi>:nt of fundamental rights do to "Ehfev.iie'rit'o1'cerrient of other rights. ouir"i~:i._'C.onstitution (Fundamental'i.R:ightsi) bout these matters _ai_Co_:unVtry governed by law. VFurth'e.r;"'itiieiiiiepoizrijuatof a.ipe_t.ivitione1' may be such that the _intere.st..ol'jas'tviee..._wouid not be promoted by gi'antirrg_any'\ztir'itii'A=ar1d.:i:thereupon :1 writ will be refused. down by the Sup. Ct. in Moitieharid v. H.B. Munshi by a majority i dissenting. In Rabindra Nath V. _U1_1i.on* a'1iotiie1'i"Constitution Bench of 5 Judges was as-.ked_>to.:}*reconsidei' the majority judgments in Tilokehand Mothinchand's Case. The Bench, after _carefufiy considering the matter afresh, affirmed the iiimajiority judgments in Tilokchand Motichantfs Case 6