Mahadev Saniyar Naik vs The Chairman, Land Tribunal and Others

B. Veerappa, J.—1. The petitioner/Mahadev Naik, tenant filed the above writ petition against the order dated 29.10.1977 made in LRM 18/855 passed by the Land Tribunal, Bhatkal vide Annexure - B in the writ petition.

According to the petitioner, he has filed Form No. 7 for grant of occupancy rights in respect of the property in question. The respondents/landlords have not filed any objections. The Tribunal rejected the application without considering the material documents on record.

It is also contended that the petitioner name was entered in the RTC for the year 2014-15 and he is in possession and enjoyment of the same. The 1st respondent entered the name of the Government without any basis and also contended that the petitioner filed application under Section 48A(1) of the Karnataka Land Reforms Act, as there was a defect and technical mistake in the application. The Tribunal without considering the entire material on record dismissed the petition. Therefore, he is before this Court.

I have heard the learned counsel for the parties to the lis.

Shri D.J. Naik, learned counsel for the petitioner contended that the Tribunal has committed error in rejecting the application without considering the entire material on record and also contended that though notice was issued to the landlord, landlord was not present and he has not filed any objections. Therefore, the Tribunal ought to have considered the application of the petitioner for grant of occupancy rights and the same is not considered. Therefore, he sought to allow the above writ petition.

Per contra, Smt. K. Vidyavati, learned AGA for the respondent Nos. 1 and 2 contended that the very writ petition filed by the petitioner is liable to be dismissed on the ground of delay and latches and sought for dismissal of the writ petition.

I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.

Admittedly, there is delay of 39 years in filing the present writ petition. In the entire writ petition, absolutely there is no explanation for inordinate delay of 39 years. In the absence of any explanation, writ petition is liable to be dismissed on the ground of delay and latches.

It is not in dispute that the petitioner was aware of the order passed by the Land Tribunal as long back as 29.10.1977 itself, since he was present when the case was called on that day before the Land Tribunal proceedings and he made a submission before the Tribunal that there was a mistake. Inspite of the same, he has not agitated the Tribunal order nearly about four decades. In the absence of explanation/sufficient cause, it is not upon for this Court to entertain this writ petition at this belated stage.

The Apex Court while considering the principle of law that ''delay defeats equity'' in the case of S.S. Balu and Another- vs- State of Kerala reported in , (2009)2 SCC 479 at para-17 has held as under:

"17. It is also well settled principle of law that "delay defeats equity". Government Order was issued on 15.1.2002. Appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and the State of Kerala preferred an appeal thereagainst, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage. In New Delhi Municipal Council v. Pan Singh and Ors. , (2007) 9 SCC 278, this Court held:

"16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction."

The Hon''ble Supreme Court while considering the provisions of Section 5 of the Limitation Act in the case of Shankara Co-operative Housing Society Limited v. M. Prabhakar and Others reported in , 2011(5) SCC 607 at para 46 and 54 has held as under:

"46. Delay and laches is one of the factors that requires to be borne in mind by the High Courts when they exercise their discretionary power under Article 226 of the Constitution of India. In an appropriate case, the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his rights taken in conjunction with the lapse of time and other circumstances"

"54. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution 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 own facts.

(2) The principle on which the Court refuses relief on the ground of laches 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 Articles 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."

In view of the admitted fact of delay of 39 years and in view of the law declared by the Hon''ble Supreme Court, stated supra, the petitioner has not made out any ground to interfere with the impugned order passed by the Land Tribunal.

Accordingly, the writ petition is dismissed mainly on the ground of delay and latches.