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Judgment
K.N. Phaneendra, J.—The petitioners in LRRP No. 2079/1989 have challenged the order passed by the District Land Reforms Appellate Authority, Belgaum (DLRAA) (for short ''Appellate Authority''), in RALR No. 983/1986 dated 22.02.1989, wherein the said Appellate Authority has affirmed the order made in KLR.OCP.SR. 908/74 dated 04.08.1977 on the file of the Land Tribunal, Khanapur.
The petitioners in the Writ Petition No. 35288/2003, who are also the petitioners in the said LRRP, have also called in question the order passed by the Land Tribunal in KLR.OCP.SR.908/74 dated 04.08.1977. The respondents in both the cases are represented by Smt. R.M. Hiremath.
I have heard the arguments of the learned Counsel for the petitioners and also the learned Counsel for the respondents, in both the cases.
The facts which are not in dispute between the parties are that, the father of the petitioners- 1 (a) to (c), by name Ramachandra Babu Desai and husband of Respondent No. 4 by name Dattatreya Desai, who are brothers, have filed an application in Form No. 7 before the Land Tribunal, Khanapur, seeking declaration of occupancy rights in respect of the land measuring 4 acres 30 guntas in Sy. No. 363/2/B of Olamani Village and the land measuring 14 acres 5 guntas in Sy. No. 67 of Daroli Village vide application dated 16.08.1974, claiming that the said persons along with other family members are jointly entitled for the occupancy rights in respect of the said survey numbers. Respondent No. 3-Ganapathi Babu Desai, who is none other than another brother of Ramachandra Babu Desai and Dattatreya Desai, has also filed independent application on 22.08.1974 in Form No. 7 seeking occupancy rights claiming that he alone was the tenant of the said land, as he was independently cultivating the said lands.
As per the records, it is not in dispute that on 23.07.1977, the Land Tribunal has granted occupancy rights in favour of Respondent No. 3 holding him as an exclusive tenant of the said lands. That particular order is under challenge in W.P. No. 35288/2003. Again the Land Tribunal on 04.08.1977 has taken-up the application filed by the said Ramachandra Babu Desai and Dattatreya Desai and considering the said application, granted the occupancy rights in favour of the family to the extent of 1/3rd share including Respondent No. 3.
It appears thereafter getting the order of occupancy rights from the Land Tribunal in favour of entire family, the petitioner-Ramachandra Babu Desai has filed O.S. No. 134/1979 against Respondent No. 3 -Ganapathi Babu Desai and Respondent No. 4-Dattatreya Desai with other family members for partition and separate possession on 14.09.1979. The said suit came to be decreed ex-parte, as Respondent Nos. 3 & 4 did not contest the suit. In the said suit, the Court has decreed the suit schedule properties including the properties involved in this case declaring 1/3rd share to all the respective sharers of the family, i.e. to say, 1/3rd share in so far as Ramachandra Babu Desai, 1/3rd share to Ganapathi Babu Desai, and 1/3rd share to Dattatreya Desai are concerned, on 15.07.1979. The Final Decree Proceedings was initiated in FDP No. 10/1979. According to the learned counsel, the said decree was referred to the Deputy Commissioner for effecting the partition according to the preliminary decree as required under Section 54 of CPC, but thereafter to know what happened, no materials are available before the court.
It is seen from the records that, aggrieved by the order passed by the Land Tribunal for the second time in respect of the application filed by the petitioner and Dattatreya Desai, the 3rd respondent called in question the order passed by the Land Tribunal in KLR OCP SR 908/1974 dated 04.08.1977 in W.P. No. 25001/1982 and subsequently, after constitution of Land Reforms Appellate Authority (for short, LRAA) in each districts, the said writ petition was transferred to the District Land Reforms Appellate Authority at Belgaum and the same was registered in RALR No. 983/1986. The District Land Reforms Appellate Authority vide its judgment dated 22.02.1989 has set aside the order passed in favour of the petitioners and the husband of Respondent No. 4 and upheld the order passed by Land Tribunal earlier on application filed by Respondent No. 3-Ganapathi Babu Desai. The said order passed by the LRAA is called in question before this court in LRRP No. 2079/1989. Belatedly the order of the Land Tribunal granting occupancy rights in favour of Respondent No. 3 is also challenged before this court in W.P. No. 35288/2003.
On going through the above said factual aspects and also on going through the order of the Land Tribunal in the above said two cases and also the order of the LRAA in RALR No. 983/1986, it is noticed that none of these Forums have substantially and completely decided the lis between the parties in their entirety. The Land Tribunal after giving opportunity to both the parties passed two independent contradictory orders granting occupancy rights both in favour of the petitioners as well Respondent No. 3. The Appellate Authority also did not go into the merits of the case as to whether the order of the Land Tribunal in granting occupancy rights in favour of Respondent No. 3 is correct or granting of the occupancy rights in favour of the petitioners is correct, and it has not been gone into on the factual aspects between the parties. Only on the grounds, holding that the Land Tribunal has no jurisdiction to set aside its own order earlier passed and to pass any subsequent order granting occupancy rights in favour of the petitioners. But on that sole ground the orders of the Land Tribunal passed in favour of the petitioners were set aside by the Appellate Authority. Therefore, the order of the District Appellate Authority, which is questioned before this court, requires to be considered by this court as to whether the first Appellate Authority has decided the lis between the parties, if not what this court has to do. It goes without saying that the Land Tribunal has not made any efforts to record the statements of the parties clubbing the above said two applications for the purpose of rendering complete justice to the parties in accordance with the Karnataka Land Reforms Act (for short, KLR Act''). In this context, the learned Counsel for the petitioners has brought to my notice a specific provision i.e.,Rule-17 of the Karnataka Land Reforms Rules, 1974 (for short, KLR Rules), which reads as under:--
"17. Procedure to be followed by the Tribunal: [(1)] the tribunal shall in respect of applications made to it follow the same procedure as specified for a summary enquiry under section 34 of the Karnataka land Revenue Act, 1964 subject to the condition that the records of the proceedings shall be maintained in a language understood by all its members.
(2) Order sheet shall be maintained by the chairman in respect or each case heard by the tribunal, noting in it the day-to-day proceedings of the tribunal relating to the conduct of the case.
(3) When a meeting is adjourned, the date, time and place of hearing of adjourned meeting shall be made known to the parties present and their signature obtained on the order sheet.
(4) The progress in the enquiry of each case shall be noted by the Chairman immediately after hearing or the holding of spot inspection by the tribunal.
(5) The opposite party shall be allowed to cross-examine the witness and if it does not wish to so cross-examine, a note shall be made accordingly. A brief summary of the evidence given by each witness shall be recorded by the chairman.
(6) If there are more applications than one for registration of occupancy rights by different persons in respect of the same land, those cases shall be clubbed together and a common order passed.
(7) Prayer on an interlocutory application has to be considered by the tribunal strictly in relation to the relies sought for.
(8) The order shall be signed, in addition to the Chairman, by the other members of the tribunal who heard the case.
(9) All orders shall be speaking orders, namely, the points for decision, the decisions themselves and the reasons for the decisions shall be mentioned. The orders shall be pronounced in the open court.
(10) No member of the tribunal shall participate in the deliberations or decision of a case in which he is personally interested."
The Tribunal, in respect of the applications made to it, shall follow the same procedure as specified for a summary enquiry under Section 34 of the Karnataka Land Revenue Act, 1964, subject to the condition that the records of the proceedings shall be maintained in a language understood by all its members.
Sub-clause (6) of the said Act says that if there are more applications for consideration of the occupancy rights by different persons in respect of the very same land, then the Tribunal shall club the applications together and pass a common order. This clearly indicates that it is a mandatory provision, wherein if one person has claimed occupancy rights in respect of the same property, it is the duty of the Land Tribunal to club those applications mandatorily in order to avoid conflicting decisions to be rendered by the Land Tribunal, because, this provision has not been followed, it ended-up in rendering two conflicting decisions by the Land Tribunal so far a this case is concerned. Therefore, in my opinion, the litigation between the parties has not yet been completely decided either by the Land Tribunal or by the Land Reforms Appellate Authority (LRAA) in accordance with the procedure and law. Therefore, both the orders passed by the Land Tribunal deserve to be quashed.
Be that as it may. Smt. R.M. Hiremath, learned Counsel for Respondent No. 3 has strenuously argued before this court that W.P. No. 35288/2003 is hopelessly barred by limitation and the same has been filed after the long lapse of more than 25 years. Reasons for the delay are also not properly assigned by the petitioners in order to consider their petition. In this regard, learned Counsel has relied upon a decision of the Apex Court reported in Basawaraj and Others Vs. The Spl. Land Acquisition Officer, , wherein the court has observed at Head Note ''E'' while dealing with the aspect of delay, as under:--
"Held: "Sufficient cause" means an adequate and enough reason which prevented him to approach the Court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the Court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
In fact, this ruling lays down a general rule as to how the court has to consider the delay in preferring any application/petition/appeal. Admittedly no statute says what is the limitation period for the parties for filing the writ petition. There is no limitation for filing writ petition. However, the reasonableness requires for the courts to consider whether approaching the court by way of writ petition deliberately in order to defeat any vested right of any of the parties by inordinate delay, without any reasons or sufficient grounds. The court has to consider all the surrounding circumstances to ascertain whether the delay can be condoned though Section 5 of the Limitation Act is not strictly could be adhered into. But the contents of the said provision could be looked into for the purpose of ascertaining the conduct of the parties to the proceedings. In this background if it is seen that the 1st and 2nd orders passed by the Land Tribunal are within a short span of time, one order was challenged before the Appellate Authority and another order was not challenged by the petitioners before the Appellate Authority or by way of a writ petition. The Appellate Authorities were empowered to hear the parties on merits of the case, if the court is of the opinion that any serious illegality or procedural irregularity is committed and if it is so, the courts have got ample power to pass appropriate orders in order to render substantial justice to the parties and that has not been done by the First Appellate Authority. Perhaps, the petitioners herein who have also participated before the Land Reforms Appellate Authority might have felt that the Appellate Authority may take the responsibility of protecting their rights enshrined under the Karnataka Land Reforms Act, when they have not succeeded in the said appeal, that may be the reason why they immediately within time challenged the said order before this court. Further added to that the records also disclose that in the year 1979, a suit was filed in which Respondent Nos. 3 and 4 were also the parties to the said suit and they were placed ex-parte, and they did not participate, the court has awarded 1/3rd share in the suit schedule property wherein it was in consonance with the orders passed by the Land Tribunal in favour of the petitioners earlier. Though the said order was set aside by the District Land Reforms Appellate Authority, but there was chance of the parties confusing themselves on the ground that the civil court already declared the rights in favour of the petitioners and that might have not prompted them approaching this court challenging the order passed by the Land Tribunal against them. Even after that they did not file any writ petition immediately challenging the order passed in favour Respondent No. 3. There is delay of more than 14 years in not filing the writ petition. However, it can not also be overlooked because order of the District Appellate Authority, which was already challenged, was pending in LRRP. The parties might have also felt that they may get appropriate orders in LRRP itself. Perhaps, subsequently, the advocate who is appearing for the parties might have felt that it is necessary to challenge that order also in order to avoid multiplicity of proceedings and also legal complication that may arise in future they might have advised the parties to file this writ petition before this court. Though there is a long delay in filing the writ petition, in one or the other way the parties have been agitating their rights before the legal Forums, which attitude shows that they have no intention to defeat the right of Respondent No. 3, therefore they filed an application thinking that Respondent No. 3 is also entitled for occupancy rights along with them, but not exclusively, since they claimed that the tenancy rights had been enjoyed by the entire family. The surrounding circumstances show that there was no deliberate intention on the part of the petitioners. In such circumstances, mere delay should not come in the way of the court to administer substantial justice. Therefore, keeping all the surrounding circumstances in mind, the court has got ample power to condone the delay on the basis of the decision of supreme court cited by the learned Counsel for Respondent No. 3. Therefore, I do not have any hesitation to hold that the delay in preferring this writ petition is not deliberate and it is unintentional, as such, the delay can be condoned.
In view of the above facts and circumstances of the case, I am of the opinion that the Land Tribunal is the authority alone which can decide the tenancy issue between the parties. This court exercising the powers under Articles 226 and 227 of the Constitution of India cannot indulge in deciding the lis between the parties without there being any sufficient materials or even without there being a finding by the Land Tribunal in that regard. This court could only meticulously look into the process of decision making, but, normally it should not make a decision.
In the above circumstances, it is just and necessary to set aside both the orders of the Land Tribunal and direct the Land Tribunal to dispose of the applications in accordance with law by clubbing both applications in Form No. 7 filed by the petitioner and Respondent No. 3.
In the result, I proceed to pass the following order:--
"ORDER
Both LRRP No. 2079/1989 and Writ Petition No. 35288/2003 are allowed. Consequently, the order passed by the Land Tribunal in KLR.OCP.SR.908/74 dated 04.08.1977 and the order dated 22.02.1989 in RALR No. 983/1986 passed by the District Land Reforms Appellate Authority, Belgaum, are hereby quashed. The matters stand remitted to the Land Tribunal, Khanapur, for the purpose of disposal of Form No. 7 filed by the deceased Ramachandra Babu Desai and Dattatreya Desai and another Form No. 7 filed by Respondent 3 -Ganapathi Babu Desai, by clubbing the said two applications. The Land Tribunal is directed to afford opportunity of hearing to the legal representatives of the original claimants and dispose of the said applications in accordance with law."