Karnataka High Court
Sri Frank Martin Lobo vs The State Of Karnataka on 9 January, 2014
Bench: N.K.Patil, Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 9TH DAY OF JANUARY 2014
P RESENT
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE RATHNAKALA
WRIT APPEAL NO.5757/2012 (LR)
BETWEEN:
1. Sri. Frank Martin Lobo,
Aged 80 years,
S/o late Mr. Henry Joseph Lobo,
Sangeeth Vihar,
Near Bijai Church,
Mangalore - 575 004.
2. Sri. Gerald Joseph Lobo,
Aged 71 years,
S/o late Mr. Henry Joseph Lobo,
Sangeeth Vihar,
Near Bijai Church,
Mangalore - 575 004.
Represented by GPA Holder
Appellant No.1. ..APPELLANTS
(By Sri. Cyril Prasad Pais, Adv.)
AND:
1. The State of Karnataka,
Department of Revenue,
M.S. Building,
Bangalore - 560 001.
Represented by its Secretary.
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2. The Land Tribunal,
Mangalore Taluk,
Mangalore,
Dakshina Kannada - 01
Represented by its Chairman.
3. Smt. K. Jalajakshi,
Major,
W/o Sheena Kottari,
Residing near National
Tile Works,
Boloor,
Mangalore - 575 003. ...RESPONDENTS.
(By Sri B. Veerappa, AGA for R-1 & R-2;
Sri V.R. Prasanna, Adv. for R-3.)
This Writ Appeal is filed under Section 4 of the
Karnataka High Court Act praying to set aside the order
passed in the Writ Petition No.12680/2008 dated
10/07/2012.
This Appeal coming on for Preliminary Hearing this
day, N.K. PATIL J., delivered the following: -
JUDGMENT
This appeal is filed assailing the impugned order dated 10th July 2012 passed in Writ Petition No.12680/2008 by the learned Single Judge, wherein appellants-1 and 2 herein had questioned the correctness of the order dated 22.1.1981 passed by the Land Tribunal, Mangalore. The said writ petition filed by the appellants herein was dismissed as devoid of merits. Being dissatisfied with the impugned order 3 passed by the learned Single Judge, the appellants felt it necessary to present this appeal.
2. Brief facts of the case on hand are that:
The land bearing T.S.No.761/2 measuring 29 cents situated at Boloor village, Mangalore Taluk, Mangalore District, is a non-agricultural property. The third respondent herein has filed Form No.7 for registration of occupancy rights under Section 45 of the Land Reforms Act, contending that she was cultivating the said land since more than 22 years. The application filed by respondent No.3 had come up for consideration before the second respondent - Land Tribunal, Mangalore on 22nd January 1981. The Land Tribunal after conducting enquiry as envisaged under the relevant provisions of the Karnataka Land Reforms Act and Rules, has granted occupancy rights in favour of the third respondent holding that, the third respondent appeared personally on 28.10.1980 and gave evidence stating that she obtained said land on "moolgeni" basis and she is paying Rs.7.81 paise "moolgeni" per annum to the original tenant (moolgenidar) of the land in question and she has 4 constructed a house and staying in the land in question and also there are 20 coconut trees and one well and she has produced a receipt for having paid moolgeni to the original tenant and that land in question was an agricultural land as on 1.3.1974 and the said land is a tenanted land and vested in the Government as on 1.3.1974 and further it is observed that, there is neither the name of third respondent nor her mother in RTC records but she has produced moolgeni receipt and she has established that she is a tenant in respect of the land in question and occupancy rights has been registered. Be that as it may. After lapse of more than 27 years, as it is two decades seven years, the appellants herein filed W.P.No.12680/2008, questioning the correctness of the order passed by the second respondent - Land Tribunal dated 22nd January 1981 in proceedings No.LRT 690/1980-81 on the ground that, no notice as such has been issued to the father of the appellants nor the appellants herein, as envisaged under the relevant provisions of the Land Reforms Act and Rules. Therefore, the enquiry conducted and order passed by the Land Tribunal is against dead persons and without affording a reasonable opportunity 5 of hearing to the legal representatives of the deceased father, who is party to the proceedings and culminated in passing the order and such orders cannot be sustained and as soon as he came to know of the order passed by the Land Tribunal, without any delay from the date of knowledge, he has filed a writ petition within limitation period.
3. Learned Counsel appearing for the appellants Sri.Cyril Prasad Pais, at the outset, submitted that the Land Tribunal has not conducted the enquiry in strict compliance of the relevant provisions of the Land Reforms Act and proceeded to pass an order treating the legal representatives of the deceased exparte and passed the order impugned as it is against the dead persons and no opportunity as such has been given to them. To substantiate their case, he submits that the land in question is not an agricultural land as on 1.3.1974. He has purchased the said land in the year 1945. The character of the said land has been changed into non- agricultural land. He is running a brick factory in the adjacent land. If he was given opportunity, he might have established that the land is not a tenanted land and 6 respondent No.3 is not entitled for registration of occupancy rights. Therefore, he submits that the impugned order passed by the second respondent - Land Tribunal dated 22.1.1981 is liable to be set aside and declare that the land is not a tenanted land. Hence respondent No.3 is not entitled for registration of occupancy rights.
4. Further he seeks to point out regarding the submission that notice has been sent to the wife of the original owner and the mother of appellants-1 and 2 and refused by the sons of the deceased, the said submission cannot be accepted and as per Rule 4 of the Land Reforms Rules, the mode of service has been stipulated, but the same has not been complied. Therefore, service of notice was held insufficient as contended by the learned Counsel for respondent No.3 cannot be accepted. Taking all these aspects into consideration, the order passed by the Land Tribunal and the learned Single Judge are liable to be set aside and relief sought for in the writ petition be granted as prayed for.
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5. As against this, learned Additional Government Advocate appearing for respondents-1 and 2 and Counsel appearing for respondent No.3, at the outset, submitted that the learned Single Judge is justified in dismissing the writ petition on the ground of delay and laches and therefore, interference is uncalled for. To substantiate his submission, learned Additional Government Advocate appearing for respondents-1 and 2 drew our attention to the original records and submitted that, in fact, notice has been issued in Form No.9 under Rule 19(1) of the Land Reforms Rules; and under Section 48(2) of the Act, to the wife of the deceased Henri Joseph Lobo. First notice was issued to the deceased late Henri Joseph Lobo on 20.9.1980. On account of death of Henri Joseph Lobo, an attempt has been made to serve notice on his wife, but she refused to accept the same. Thereafter again one more notice was issued on 12.1.1981 to wife and son, but both have refused to accept the same. Therefore, there was no option for the Tribunal to treat them exparte and proceed on the basis of the material on record and registered occupancy rights in favour of third respondent. Further, he seeks to point out and vehemently 8 submit that, it is the duty of the legal representatives of the deceased Henri Joseph Lobo to come on record as legal representatives of the deceased. Therefore, the Tribunal is justified in conducting enquiry in strict compliance of the Land Reforms Rules and recording a finding of fact. Therefore, he submits that, the impugned order does not call for interference. Hence, the Writ Appeal is liable to be dismissed on the ground of delay and laches and also on merits, confirming the order passed by the Land Tribunal and the learned Single Judge, respectively.
6. After careful consideration of the submissions made by learned Counsel appearing for both the parties and on perusal of the impugned order passed by the Land Tribunal, what emerges is that, it is not in dispute that third respondent has filed Form No.7 for registration of occupancy rights contending that she is cultivating the said land on moolgeni basis. It is also not in dispute that third respondent claimed through her mother as moolgeni tenant and this fact has been admitted by the appellants herein in the writ petition and in view of amendment of the Act, third 9 respondent filed Form No.7 for registration of occupancy rights. Further, it emerges from the original records produced by the Additional Government Advocate that, in fact, notice has been issued in the name of Henri Joseph Lobo, the father of appellants-1 and 2. Thereafter, the said notice was issued to the wife and sons of Henri Joseph Lobo. There is an endorsement from the Peon/Process Server to the effect that, the wife and children have refused to take notice. There was no other option for the Tribunal but to proceed on the basis of the material on record and conduct an enquiry after strict compliance of the Land Reforms Act and Rules and record a finding of fact holding that, the land in question is an irrigated land and is a tenanted land as on 1.3.1974 and vested in the Government and also recorded that, third respondent has produced "moolgeni" receipt for paying the "moolgeni" rent to the original tenant. Thereafter they continued tenancy under the appellants' father Henri Joseph Lobo and also under these appellants. The Tribunal has rightly accepted the case made out by third respondent and registered occupancy rights after conducting enquiry as provided under the provisions of Land Reforms Act and 10 Rules nor the appellants have made out any case to interfere with the order passed by the Land Tribunal on merits, except taking a stand that they have not been served with notice and that the order has been passed exparte. That cannot be accepted because the appellants are well-educated-cum- businessmen and citizens of Mangalore town and it is duty cast on them to follow the proceedings pending before the jurisdictional Courts and Tribunals. After the death of father of appellants, it is duty cast on them to come on record and defend their case. But, they have not chosen to do this exercise. It is significant to note, as rightly pointed by the learned Counsel for third respondent that, in fact, the mother-in-law and husband of third respondent have filed caveat against first appellant herein in respect of Sy.No.761/2 before the Vacation Judge at Dakshina Kannada District, Mangalore, anticipating appellants may file suit for declaration and injunction and that caveat petition sent by RPAD has been accepted by appellant No.1 in the year 1993. They had the knowledge not in 1981 but had the knowledge only in 1993 and they were aware about the redressal of grievance made by the mother of third 11 respondent's husband in respect of adjacent land, but they have questioned the correctness of the order passed by the Land Tribunal dated 22.1.1981, after more than 27 years.
7. Further, after careful perusal of the entire material on record, nowhere they have explained the inordinate delay in approaching this Court.
8. Taking all these aspects into consideration, we are of the considered view that the instant appeal is liable to be dismissed on the ground of delay and laches and also on merits. Accordingly, it is dismissed.
In view of dismissal of the appeal filed by the appellants, the relief sought for in I.A.No.1/2012 does not survive for consideration. Hence, I.A.No.1/2012 stands disposed of as having become infructuous.
Sd/-
JUDGE Sd/-
JUDGE KNM/-