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Judgment
Ajit J. Gunjal
The petitioner is assailing the order passed by the Land Tribunal granting occupancy rights in favor of the predecessor of respondents 2 and 3.
The matter arises in the following manner:
The petitioner claims to be the owner of the lands in question, which was allotted to him pursuant to a family partition in the year 1966. A copy of the Partition Deed is produced at Annexure ''B'' According to the petitioner, the properties in question along with others were allotted to him when he was a minor and his guardian was his mother one Uma V. Shetty. Suffice it to note that an application is moved for grant of occupancy rights by one Sanjeeva Hegde seeking occupancy'' rights in respect of Sy.No. 316/8 to an extent of 36 guntas, Sy.No. 313/2 measuring 45 cents, Sy.No. 316/.1.0 measuring 29 cents and Sy.No. 342/1 measuring 1 acre 85 cents. The application discloses that the owner of the land is one Uma V. Shetty, in as much as, as on the date when the application was made in the year 1974, the petitioner was a minor toddler. Pursuant to the impugned order, the occupancy rights are granted in favor of the original applicant Sanjeeva Hegde, The impugned order is at Annexure ''A'' dated 20.8.1981.
The delay in filing this writ petition is sought to be explained in the writ petition indicating that the petitioner after attaining majority and graduation left for Delhi in the year 1982 with his parents and he was selected for the Indian Air Force. He quit the Indian Air Force on medical grounds and returned to Delhi in the year 1987. After completing his further education he set up an IT industry and is residing with his parents, The petitioners grand mother one Jalajakshi Shedthi died in the year 1981. Hence, he would contend that he was not aware of the proceedings at all and came to know of it recently. Hence, a writ petition is filed.
Another grievance of the petitioner is that there is no claim in respect of Sy.No. 342/1 to an extent of 1 acre 85 cents. Hence, grant & biased.
Mr. K.S. Vyasa Rao, learned Counsel for petitioner would reiterate what has been stated and submits that the impugned order as liable to be set aside, if not in its entirety, atleast in respect of Sy.No. 342/1.
Mr. Mohandas Shetty, learned Counsel for respondent No. 2 submits that there is considerable delay in filing the writ petition. He further submits that the petitioner''s mother was arrayed as a landlord and she was not available for service of notice. But, however, it was affixed on the land. Hence, he submits that they were aware of the proceedings. He further submits that on spot inspection, the original applicant was in possession to an extent of 1 acre 85 cents in Sy.No. 342/1. Hence, occupancy rights have also been granted. He further submits that after the grant, there is a partition amongst the family members and the property has been further sub divided and has been allotted to various members of the family. He also submits that the properties are sold and third party rights have been created.
Mr. Vyasa Rao, learned Counsel is right in submitting that there was no claim in respect of Sy.No. 342/1. But however, what is significant to note is that close to 25 years have elapsed after the impugned order was passed. As on the date when the impugned order was passed, undoubtedly, the petitioner was a minor. He attained majority immediately thereafter, that is sometimes in the year 1985.
The case of the petitioner himself is that he was in his home town till 1981 and left for Delhi only thereafter. It is also to be noticed that the claimant Sanjeeva Hegde is Done other than the brother of the grand mother of the petitioner i.e., one Jalajakshi Shedthi. Indeed, it is trite that the petitioner was not aware of the transactions which have taken place in the family After the order are passed in the year 1981, the properties in question have also been partitioned between the family members of the original applicant pursuant to a registered Partition Deed dated 27.2.2002. It is also to be noticed that the allotted lands were further sub divided and have gone to the various shares of the family members. Indeed, the other members of the family to whom this property has been allotted have not been made parties to the proceedings. The other members of the family to whom share has been allotted are required to be made parties. That has not been done. Hence, it is a case of non joinder of necessary parties,. It is also to be noticed that if the order is interfered in respect of the present respondents, the order passed in respect of others will not be disturbed.. Hence, there cannot be two different orders, one confirming occupancy rights and the other interfering with the order of the Tribunal.
Mr. Vyasa Rao, learned Counsel would press into service the decision of the Apex Court in the case of Ramachandra Krishna Bhatta (dead) by legal representative, vs. State of Karnataka and another reported in AIR 2008 SCW 2829. That was a case where the impugned order was passed without notice and within a reasonable time, the same was questioned by the aggrieved party before the then Land Reforms Appellate Authority. Obviously, that in a case where no notice was issued. The Apex Court was of the view that Section 48-A contemplates issuance of notice. Hence, the impugned order is in violation of principles of natural justice.
But, however, that is not the case here in as much as, after the order is passed in the year 1981. 30 years have (sic)lapsed and 30 years is too long a period for one to comprehend and come to a conclusion that non issuance of notice is fatal to the case. In so far as the claim not being there in respect of one of the lands is concerned, undoubtedly if the petitioner had rushed to this Court at an earliest point of time this Court would have certainty stepped into grant relief. It is no doubt true that Sub Section 8 of Section 48-A contemplates that where no application is made within the time allowed under sub section (1) the right of any person to be registered as an occupant shall have no effect. But, however, such a relief certainty could have been granted to a litigant, who would approach the Court at the earliest Once again reiterating what has been stated earlier that if there is a partition in the family and the said land has been divided and distributed among the family members, the order cannot be interfered when the order in so far as the other family members would stand confirmed for not making parties to the present proceedings in as much as there would be inconsistent orders.
If any decision is required, one can refer to the decision of this Court in the case of Ramappa Mallappa Karunnavar Vs. Vinayak Shripatrao Patwardhan and another reported in 1973 (1) KLJ 294 . This Court has followed the rulings of the Apex Court in the case of Babu Sukhram Singh Vs. Ram Dular Singh and Others, , wherein it is observed that there cannot be two conflicting orders in respect of the same cause.
It is also to be noticed that alter the partition between the members of the family of Sanjeeva Hegde, some of the family members have also alienated the property in the year 2008, Hence, I am of the view that the third party rights have been created. Hence, the question of interference does not arise.
The Apex Court in the case of State of Rajasthan and Others vs. D.R. Laxmi and Others reported in (1995) 6 SCC 445 has observed that even assuming that notices are not issued and there is violation, the Courts are not required to step in and upset the order when there is considerable delay in questioning the order and ruled as under:
The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief even if it holds that the order was void. The net result is that extraordinary jurdiction of the Court may not be exercised in such cicumstances.
I am of the view that this In one case where the petitioner has allowed the grass to grow under his feet. Having said so, I am of the view that the question of interference is not at all warranted. Petition stands rejected.
Mr. Shashidhar S. Karamadi learned HCGP is permitted to file memo of appearance within four weeks from today.