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Judgment
B.V. Nagarathna, J.—Petitioners have assailed order dated 22-6-1981 passed in Nos. TRL 112-80, 110-80-81 (Annexure-A to the writ petition). The land, which is the subject-matter of controversy in this matter is Sy. No. 248/12 measuring 1 acre 32 cents situated at Karkala Town, Udupi District (hereinafter referred to as the "land in question").
The case of the petitioners is that land in question is owned by one Pachappa Shetty, who was not married. Smt. Lakshmimathi Amma was his niece i.e., sister''s daughter. She and her children inherited the aforesaid lands under Aliyasanthana law. Smt. Lakshmimathi Amma and her children executed a registered release deed dated 19-12-1956 in favour of one Gunavathiamma and her children. A copy of the release deed is produced as Annexure-B to the writ petition. It is stated that under that release deed, the land in question came to the ownership of the petitioners as their mother was Gunavathiamma. The name of their mother was entered in the record of rights as Khathedar in possession of lands. After the enforcement of Karnataka Land Reforms (Amendment) Act, 1974, respondent 3 filed Form 7 seeking grant of occupancy rights of the said land in question by arraigning one Sri Narayana Hedge, deceased by his son Sanjeeva Hedge and Nagaveniyamma i.e., the mother of the third respondent as respondent before the Tribunal. By order dated 30-8-1980, the Land Tribunal granted occupancy rights of the land in question to respondent 3. That order is assailed by the petitioners by filing this writ petition in April 2012.
I have heard the learned Counsel for the petitioners; learned Counsel for respondent 3 and learned High Court Government Pleader for respondents 1 and 2, who has also made available the original records.
On a query from the Court with regard to the delay of 32 years in filing this writ petition, petitioner''s Counsel stated that there is no delay in the instant case as there was a fraud committed by respondent 3 by assailing his own mother and one Narayana Hedge as respondents before the Tribunal and thereby obtaining an order with regard to grant of occupancy rights in respect of the land in question. He stated that the impugned order is null and void and therefore has no operation in law and the delay in assailing that order by the petitioners herein cannot be a ground to dismiss the case of the petitioners as the petitioners have a good case on merits. Elaborating further, he contended that the petitioners are the children of one Gunavathiamma in respect of whom the land in question was released under a registered relinquishment deed dated 19-2-1956 that the name of Smt. Gunavathiamma was entered in the revenue records including the RTC. As the petitioners were located in various places as they were working in different places they were not aware of the impugned order and therefore not having knowledge of the impugned order, no delay can be attributed to them in filing the writ petition.
In support of the aforesaid submission, reliance was placed on the judgments of the Hon''ble Supreme Court in the case of Assistant Transport Commissioner, Uttar Pradesh v. Nani Singh 1979 (2) Kar L.J. Sh. N. 72 (DB) and in the case of R. Venkataramiah v. T. Narayana Sastry and Others 1969 (2) Mys. L.J. 204 (DB), to contend that the petitioners had no opportunity to know about the impugned order because they were not arrayed parties to the proceedings before the Land Tribunal and neither did the Land Tribunal intimate them about the interim order. He therefore contended that without going into the aspect of the delay in filing the writ petition or by condoning the delay in filing the writ petition, the matter may be considered on merits. He contended that the petitioners'' mother and thereafter the petitioners being the owners of the land in question, they ought to have been arrayed as parties before the Land Tribunal and in their absence, the impugned order does not bind the petitioners. Also the name of respondent 3 has not been entered in the revenue records pursuant to the impugned order.
Per contra, learned Counsel for respondent 3 brought to my notice the fact that the rival claimant-Sri Sheenoji Rao had also assailed the impugned order in W.P. No. 6532 of 1986 before this Court, and by order dated 19-8-1988, this Court dismissed the writ petition on the ground of delay. He states that these petitioners have been set up by none other than the rival claimant-Sheenoji Rao to assail the impugned order by referring to paragraph 8 of statement of objections. He further submits that with reference to his statement of objections supported the impugned order drawing my attention to the statement of objections, he stated that the relationship of the petitioners with Gunavathiamma, Lakshmimathi Amma and Pachappa Shetty as mentioned in the registered release deed dated 19-12-1956 is denied. He contended that the name Gunavathiamma mentioned in the RTC''s does not relate to petitioners'' mother. He further contended that the land in question was originally granted on Mulgeni basis, by one Vittappa Hedge to one Sheshu Sherigara, as per Mulgeni Chit dated 23-6-1884. The land was described by means of boundaries in the said document as survey settlement was introduced in the District for the first time only in the year 1900. Thereafter, Mulgeni right of Sheshu Sherigara was sold through a Court auction in favour of one Kumble Krishnayya by Court sale proceeding dated 12-11-1896. The latter in turn sold to one Nagaraja Shetty and Jinaraja Shetty under a registered sale deed dated 8-5-1897. Nagaraja Shetty was not married and on his death, his brother Jinaraja Shetty became the absolute Mulgenidar of the land in question. On 2-11-1947, Jinaraja Shetty had executed a Registered Will bequeathing lands in favour of his daughter Nagaveniamma and his grand children. That Nagaveniamma is the mother of respondent 3 and as the Mulgenidar she was arrayed as respondent before the Tribunal. Subsequently, on 8-12-1975, the land was partitioned between the members of family of Nagaveniamma including the third respondent and in that partition ''E'' Schedule land was allotted to his elder brother and ''C Schedule land was allotted to the third respondent. The reasons for arraying respondents before the Tribunal was because Form 7 was filed against Narayana Hedge, who was the lineal descendant of Vittappa Hedge, the original landlord. That Nagaveniamma though the mother of the third respondent, being the Mulgenidar, was arrayed as respondent before the Tribunal. It is also stated that third respondent''s father Jinraja Shetty, paid Mulgeni rentals to Narayana Hedge the lineal descendant of Vittappa Hedge and that after passing of the impugned order, Form 10 was issued and thereafter third respondent''s name was mutated in the revenue register and his name has appeared in the RTC since the year 1981 onwards. He contended that the release deed is a concocted document which does not relate to these petitioners and these petitioners cannot seek any right, title or interest in the land in question. That apart, he contended that the impugned order was passed in the year 1980 but the petitioners have filed this writ petition 32 years thereafter. They cannot plead ignorance of the impugned order for all these decades and therefore he sought for dismissal of the writ petition on delay as well as on merits.
In response, petitioners'' Counsel contended that the dismissal of the writ petition filed by Sheenoji Rao on the ground of delay and latches would not affect the case of the petitioners in this writ petition and that cannot be a factor which could be considered in the instant case.
Learned HCGP while making available original records contended that she supports the impugned order.
Having heard learned Counsel for the parties and on perusal of the materials on record including the original records, it is noted that the petitioners but for relying upon Annexure-B which is a copy of the registered release deed, have been able to point out any relationship between them and the persons arrayed as respondents before the Tribunal, who according to respondent 3 had a connection with the land in question. Before the Tribunal, the son of Narayana Hedge had consented to the grant of occupancy rights of the land in question to respondent 3. The detailed narration of facts made by respondent 3 in his statement of objections which have been narrated above have not been either traversed or denied by any rejoinder filed on behalf of the petitioners. The fact that the registered release deed relates to the petitioners has been categorically denied by respondent 3. The matter does not end there. Respondent 3 has in detail narrated the transfer of title to the land in question over decades as well as the manner in which, Mulgeni tenancy was transferred from person to person right from the year 1874 onwards. There is no whisper by way of counter to these facts. Therefore, it is established that the reliance placed on the release deed dated 19-12-1956 at Annexure-B is of no assistance to the petitioners. The petitioners are strangers to the land in question. Therefore, they were rightly not arrayed as respondents before the Tribunal. The reasons as to why Narayana Hedge and his son Sanjeeva Hedge and the mother of third respondent-Nagaveniamma were arrayed as parties before the Tribunal are forthcoming on a reading of the statement of objections filed by respondent 3.
In that view of the matter, petitioners can have no grievance at all with regard to the impugned order as they were strangers to the proceedings and in fact has no locus standi to challenge the impugned order. Even if for a moment it is assumed that the petitioners had some kind of connection with the land in question or any semblance of right, the fact that the impugned order is passed in the year 1980 and Form 10 has been issued to respondent 3 on 14-11-1980 and subsequently the name of respondent 3 has been mutated in the revenue records from the year 1980-1981 onwards is a matter of public record. Petitioners cannot plead ignorance of these orders as the land in question is in Karkala Town, which is not big metropolis or a city. The impugned order was pronounced in open Court and therefore it becomes a matter of public knowledge. This is not a case of an order that has been passed and kept in the office drawer. Therefore, there is constructive knowledge of the order which can be imputed to the petitioners. In fact in Nani Singh''s case, the Hon''ble Supreme Court has stated that there is communication, either directly or constructively, in the sense of making it known when an order is passed by a judicial or quasi-judicial authority in an open Court. Then it must be deemed to be in constructive knowledge, particularly insofar as these petitioners are concerned, who claim to have rights in respect of the land in question.
Therefore, it is held that firstly, petitioners have no locus standi to assail the impugned order. Assuming that they did have locus standi to do it that having done over three decades the explanation given in the writ petition is insufficient in law, to be condoned. Merely because respondent 3''s name is not entered in the revenue records does not in any way assist petitioners in getting over delay and latches. Therefore, the writ petition has also to be dismissed on the ground of delay and latches and as been speculative in nature, by placing reliance on the judgments of the Hon''ble Supreme Court.
In this context, a plethora of decisions of the Hon''ble Supreme Court on the issue regarding delay and as to how a Court of equity exercising jurisdiction under Article 226 of the Constitution of India cannot extend its hands to such persons who approach the Court after several years can be relied upon. In fact, the Apex Court has held in several decisions that stale claims ought not to be entertained by High Courts exercising writ jurisdiction under Article 226 of the Constitution of India. The recent decisions in that regard are as follows:
(a) In a recent decision of the Apex Court State of Orissa and Another Vs. Mamata Mohanty, , the consideration of an application where delay and latches could be attributed against a person who approaches in a writ petition is discussed by stating that though the Limitation Act, 1963 does not apply to writ jurisdiction, however, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions could be dismissed at the initial stage on the ground of delay and latches.
(b) In the case of Shankara Co-op Housing Society Ltd. Vs. M. Prabhakar and Others, , the Apex Court at para 53 has given the relevant considerations, in determining whether delay or latches in approaching the Writ Court under Article 226 of the Constitution of India. The same reads as follows:
"53. The relevant considerations, in determining whether delay or latches should be put against a person who approaches the Writ Court under Article 226 of the Constitution of India is now well-settled. They are: (1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its owns facts. (2) The principle on which the Court refuses relief on the ground of latches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay".
(c) Similarly, the Apex Court in the case of Sawaran Lata etc. Vs. State of Haryana and Others, , has held that when the notification under Section 4 of the Land Acquisition Act, 1894 was issued in the year 2001 and the award was passed in the year 2004, writ petitions filed for quashing of the notification in the year 2009 have to be dismissed on the ground of delay as the litigants who dare to abuse the process of the Court in disregard of the law of limitation, delay and latches should not be encouraged.
(d) Reference can also be made to another decision of the Apex Court in the case of State of Rajasthan and Others Vs. D.R. Laxmi and Others, , wherein it has cautioned the High Court not to entertain the writ petitions where there is inordinate delay while exercising jurisdiction under Article 226 of the Constitution of India.
(e) Similarly, in the case of The Municipal Council, Ahmednagar and Another Vs. Shah Hyder Beig and Others, , it has been opined thus:
"The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the Writ Court, the rights of the third parties have come into being which should not be allowed to disturb unless there is reasonable explanation for the delay".
(f) In fact in S.S. Balu and Another Vs. State of Kerala and Others, , it has been held that delay defeats equity and that relief can be denied on the ground of delay alone even though relief is granted to other similarly situated persons who approach the Courts in time.
(g) To a similar effect is the decision of the Hon''ble Supreme Court in A.P. Industrial Infrastructure Corporation Ltd. Vs. Chinthamaneni Narasimha Rao and Others, .
The said decisions are squarely applicable to the facts of the present case.
In the result, the writ petition is dismissed on the ground of delay and latches.