Hanumappa and Others vs Land Tribunal and Others

Aravind Kumar, J.—Petitioner along with respondent Nos. 3 to 5 are claiming to be the owners in possession of land bearing R.S. No. 128/1 measuring 2 acres 39 guntas situated at Hulakoti Village, Gadag Taluk and they are seeking for quashing of the order passed by the 1st respondent-land tribunal Gadag in K.L.R.S.R. 57/1976 dated 14.04.1976 vide Annexure - A contending inter alia that land in question is not a tenanted land and it was not leased to anybody much less to the father of respondent Nos. 2a to 2c and the entries made in the record of rights is without following the due procedure and said entries are fake entries and will not carry any presumptive value under Section 134 of the Karnataka Land Revenue Act. It is also contended that land tribunal without considering the statement made by Shri Tippanna in Form No. 7, wherein he had stated that owners are cultivating the land in question and at no point of time he was a tenant and as such, Land Tribunal could not have ordered for grant of occupancy rights in favour of said Tippanna in respect of lands in question under Section 48A of the Karnataka Land Reforms Act that too without affording opportunity to the owner of the land and without conducting proper enquiry and as such, he contends that order passed by the land Tribunal is liable to be quashed.

Shri Ravi V. Hosamani who has been directed to take notice by this Court by order of even date would submit that writ petition is liable to be dismissed on the ground of delay and latches and there being no explanation whatsoever offered by the petitioners in filing this writ petition challenging the Land Tribunal order passed 39 years back and this unexplained delay disentitles the petitioners for grant of discretionary relief by this Court in exercise of the power under Article 226 of the Constitution of India. Hence, he prays for rejection of the writ petition.

In reply, Shri Naveen Chatred, learned counsel appearing for the petitioners would submit that cause for not approaching the Court within reasonable time has been shown at paragraph 8 of the writ petition and same was due to illiteracy, ignorance and financial difficulties faced by the petitioner and as such, he could not challenge the impugned order and as such, delay in challenging the said order passed by the land Tribunal in the year 1976 be condoned.

Having heard the learned advocates appearing for parties and on perusal of writ papers, this Court is of the considered view that following point would arise for consideration is:

"Whether the delay of 39 years in filing this writ petition has been properly explained? and whether such delay requires to be condoned? and, thereby writ petition is required to be entertained on merits?"

It is not in dispute that impugned order passed by the 1st respondent - land tribunal was on 14.04.1976. In fact petitioners also admit that name of father of respondent Nos. 2a to 2c appears in the record of rights after their father demised till date and from 1965 till his death. In other words, petitioners admit that name of respondent Nos. 2A to 2C appears in the record of rights from after the death of their father till date.

Even otherwise, order of the land tribunal would clearly indicate that notices were served and it has been recorded by land tribunal as under:

"Both parties present. They are heard and their statements are recorded. Both the parties submitted their tenancy of the suit land in favour of the applicant. The applicant claim is supported by the R o R of the suit land also. Hence, the following order is passed.

The Applicant is determined as the tenant of the suit land and is entitled for occupancy rights. Passed the following order. Pronounced in the open court.

Sd/-

Chairmen

Land Tribunal,

Gadag"

Order of Land Tribunal would clearly indicate that father of petitioners was aware of the proceedings before the land tribunal way back in the year 1976 and the record of rights also reflected the name of the deceased tenant namely Tippanna till his death in the year 1965 and thereafter, it has been made over to the name of respondents 2A to 2C.

The delay i.e., sought to be explained in writ petition for filing the present writ petition after a gap of 39 years can be gathered from paragraph 8 of the writ petition, which reads as under;

"8. It is submitted that there is a delay in filing the Writ Petition. The original owner Hanumantappa and on Ningawwa were arrayed as opponents No. 1 and 2 before the land tribunal proceedings. Deceased Tippanna had filed Form No. 7 stating that he is not cultivating the land in question as a tenant and the owners are personally cultivating the land question and the same was also stated before the land Tribunal. Therefore Hanumantappa was under the impression that based on the statement of the deceased Tippanna land Tribunal might have rejected the tenants application. Hanumappa was in possession of the land in question till his death. His possession of the land in question was not disturbed by the deceased Tippanna till his death and after his death LR''s also have not disturbed the possession. Till this day Petitioners are in possession of the of the land in question. Therefore the deceased Tippanna was under the impression that land tribunal has passed the order in their favour. The said Hanumantappa expired on 06.02.2001. After his death his LR''s continued in possession till this day. Recently when the Respondent No. 2A to 2C are trying to dispossess the Petitioners from the land in question on the ground that Land Tribunal has granted occupancy rights to their father in the year 1976 itself. Immediately Petitioners enquired about the matter in the Land Tribunal office at Gadag. Then only they came to know about the impugned order passed by the Land Tribunal. Though the Petitioners obtained the certified copy in the month of the march itself due to illiteracy, ignorance and financial difficulties they could not contact and take immediate steps to challenge the impugned order. The Petitioners are the rustic villagers and they are not aware of legal proceedings. Petitioners after mobilizing the necessary finance came over to Dharwad and filed the above Writ Petition without any further delay. Hence there is delay and latches in filing the above Writ Petition. The delay in filing the above Writ Petition is neither intentional nor deliberate but for the bono fide reasons as stated above. Therefore if the delay in filing the above Writ Petition is not condoned the Petitioners will be put to irreparable loss and injury and their valuable rights will be lost."

In the background of the factual matrix namely the deceased landlord being a party to the proceedings and he having appeared before the land Tribunal, petitioners who are successor in interest of deceased landlord cannot contend that they were not aware of the said order. In fact, the above extracted paragraph 8 of writ petition does not even remotely suggest that petitioners were being ignorant of said order.

The question of the delay is one of discretion and is to be exercised in the facts and circumstances of each case. It will depend upon the facts as pleaded in a given case. It is no doubt true that there is no limitation prescribed for the Courts to exercise the power under Article 226 of the Constitution of India. It is also not in dispute that there can never be a case where the courts cannot interfere in a matter after the passage of certain length of time, if there are compelling circumstances which would indicate that demand for justice is so compelling that this Court exercising the discretionary power would be inclined to interfere even though there is delay. Thus, it would ultimately be the discretion of the Court, which will have to be exercised fairly and justly so as to promote justice and not defeat it. There cannot be any hard and fast rule in so far as either condonation of delay or refusal to condone the delay. Merely because no third party rights have been created would hardly be a ground for condonation of delay. The discretion power under Article 226 of the Constitution of India would be exercised to grant relief only to a person whose conduct does not disentitle him to obtain such discretionary relief and from the conduct of such applicant if it is explicit that for such relief he/they would not be entitled then condonation of delay would not be called for and this Court while exercising the power under Article 226 of the Constitution of India would be slow in condoning such long delay after lapse of time and the important factor which requires to be considered while exercising the power under Article 226 length of time and nature of acts done during this interregnum period namely during such intervals.

Hon''ble Apex Court in the case of Aflatoon and Others Vs. Lt. Governor of Delhi and Others, AIR 1974 SC 2077 : (1975) 4 SCC 285 : (1975) 1 SCR 802 : (1974) 6 UJ 765 has held that the writ petitions are liable to be dismissed on the ground of latches and delay. It has been held by Hon''ble Apex Court to the following effect.

"11. Nor do we think that the petitioners in the writ petitions should be allowed to raise this plea in view of their conduct in not challenging the validity of the, notification even after the publication of the declaration under s. 6 in 1966. Of the two writ petitions, one is filed by one of the appellants. There was apparently no reason why the writ petitioners should have waited till 1972 to come to this Court for challenging the validity of the notification issued in 1959 on the ground that the particulars of the, public purpose were not specified. A valid notification under s. 4 is a sine qua non for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the, acquisition proceedings on the basis that the notification under s. 4 and the declaration under s. 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be, putting a premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners (see Tilokchand Motichand and Others v. H.B. Munshi and Another; and Rabindranath Bose and Others v. Union of India and Others.

From the counter affidavit filed on behalf of the Government, it is clear that the Government have allotted a large portion of the land after the acquisition proceedings were finalised to Cooperative lousing societies. To quash the notification at this stage would disturb the rights of third parties who are not before the Court."

It has been held by Hon''ble Apex Court in the case of Swaika Properties Pvt. Ltd. and Another Vs. State of Rajasthan and Others, AIR 2008 SC 1494 : (2008) 3 CLT 40 : (2008) 2 JT 280 : (2008) 2 SCALE 271 : (2008) 4 SCC 695 : (2008) AIRSCW 1574 : (2008) 1 Supreme 646 to the following effect.

"15. Insofar as the contention regarding the possession having not been taken is concerned, the respondents submit that the possession of the land in dispute has already been taken. Be that as it may, the award in respect of the land having become final, the State Government is vested with the powers to take possession of the land concerned and, therefore, there is no reason to disbelieve the claim of the State Government that the possession had been taken before the filing of the writ petition. Moreover, the appellants sought enhancement of compensation by filing reference application under Section 18 of the Land Acquisition Act, 1894. Simultaneously, the appellants filed writ petition before the High Court of Rajasthan after passing of the award.

This Court has repeatedly held that a writ petition challenging the notification for acquisition of land, if filed after the possession having been taken, is not maintainable. In Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd., where K. Ramaswamy, J. speaking for a Bench consisting of His Lordship and S.B. Majmudar, J. held : (SCC p. 520, para 29.)

"29. It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches."

In the concurring judgment, S.B. Majmudar, J. held as under : (Industrial Development Investment case, SCC pp. 522-523 para 35)

"35...... Such a belated writ petition, therefore, was rightly rejected by the learned Single Judge on the ground of gross delay and laches. The respondent-writ petitioners can be said to have waived their objections to the acquisition on the ground of extinction of public purpose by their own inaction, lethargy and indolent conduct. The Division Bench of the High Court had taken the view that because of their inaction no vested rights of third parties are created. That finding is obviously incorrect for the simple reason that because of the indolent conduct of the writ petitioners land got acquired, award was passed, compensation was handed over to various claimants including the landlord. Reference applications came to be filed for larger compensation by claimants including writ petitioners themselves. The acquired land got vested in the State Government and the Municipal Corporation free from all encumbrances as enjoined by Section 16 of the Land Acquisition Act. Thus right to get more compensation got vested in diverse claimants by passing of the award, as well as vested right was created in favour of the Bombay Municipal Corporation by virtue of the vesting of the land in the State Government for being handed over to the Corporation. All these events could not be wished away by observing that no third party rights were created by them. The writ petition came to be filed after all these events had taken place. Such a writ petition was clearly stillborn due to gross delay and laches."

Similarly, in the case of State of Rajasthan and Ors. v. D.R. Laxmi following the decision of this Court in Municipal Corporation of Greater Bombay (supra) it was held : (D.R. Laxmi Case, SCC p. 452, para 9)

"9..... When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case, is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches."

To the similar effect is the judgment of this Court in the case of The Municipal Council, Ahmednagar and Another Vs. Shah Hyder Beig and Others, AIR 2000 SC 671 : (1999) 10 JT 336 : (2000) 1 SCALE 124 : (2000) 2 SCC 48 : (1999) 5 SCR 197 Supp : (2000) AIRSCW 197 : (2000) 1 Supreme 146 this Court, following the decision of this Court in the case of C. Padma v. Dy. Secy. to the Govt. of T.N. held : (Shah Hyder Case, SCC p. 55, para 17)

"17. In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of the recent cases (C. Padma v. Dy. Secy. to the Govt. of T.N.)"

In the light of the dicta laid down by Apex Court as noticed herein above when the facts on hand are examined, it would clearly indicate that delay of 39 years in approaching the Court have remained unexplained by the petitioners and the cause shown would in no way indicate that it is susceptible to acceptance. There being inordinate delay of 39 years in filing the writ petition this Court is not inclined to exercise discretionary power vested under Article 226 and as such, on the ground of delay and latches the writ petition is liable to be dismissed by answering the point formulated herein above in the negative i.e., against the petitioner and accepting the argument of learned Government Advocate. Hence, the following order.

(i) Writ petition is hereby dismissed.

(ii) No order as to costs.

Shri Ravi V. Hosamani, learned Additional Government Advocate is permitted to file memo of appearance within an outer limit of four weeks from today.