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Judgment
Aravind Kumar, J.—Heard Shri Sunil S. Desai, learned counsel appearing for the petitioners and Shri Ravi V. Hosamani, learned Additional Government Advocate appearing for the respondent Nos. 1 and 2. Question of issuing notice to respondent Nos. 3, 4 and 4a does not arise, inasmuch as the present writ petition is being dismissed on the ground of delay and latches for reasons indicated herein below.
The order of the land tribunal which is impugned in the present writ petition came to be passed on 25.06.1979. It is the claim of the petitioners that they were not aware of the said order and only when the purchasers Shri Narayan S. Kole and Prakash J. Pavale applied for survey of land upon, notice of survey came to be served on the petitioners on 30.06.2012 and they have objected for said survey and have also filed their written objections specifically contending that they are the owners of the property and continued to be in possession as before vide Annexure--D.
It is also contended by the petitioners that they were not aware of the proceedings before the land tribunal and only when the notice for survey of the land was issued as per Annexure--C, they came to know of the order having been passed by the land tribunal on 25.06.1979 Annexure--B and as such, they have approached this Court immediately by filing of the present writ petition.
Shri Sunil S. Desai, learned counsel appearing for petitioners would vehemently contend that order of the land tribunal is a void order, since there was no vesting of the land in the State since from the year 1964 till the year 1985 and name of the owners of the land had been continuously reflected in the record of rights and as such, when there is no vesting of the land, question of grant of occupancy rights does not arise and consequently the order of the land tribunal becomes void and as such, it cannot be sustained.
In support of his submission, he has relied upon the judgment of this Court rendered in Fr. Jose Poothrikkayil Vs. Union of India (UOI), (2009) CriLJ 1632 : (2009) 1 KLJ 159 . He would also submit that delay even, if any, in filing the writ petition having been explained in the writ petition same ought to be condoned and prays for writ petition being examined on merits without being rejected on the ground of delay and latches and for this proposition, he relies upon the judgment of Hon''ble Apex Court in the case of Zakir Hussain Primary Teachers Education College and Another Vs. State of Bihar and Others, (2010) 6 JT 456 : (2010) 2 SCALE 127 : (2010) 12 SCC 517 : (2010) 3 UJ 1565 .
Per contra, Shri Ravi V. Hosamani, would submit that explanation offered by petitioners would not indicate that there is any sufficient ground to condone the delay and this Court exercising the discretionary power should not condone unexplained delay of 37 years in filing of the writ petition. Hence, he prays for dismissal of the writ petition on the ground of delay and latches.
Petitioners have sought to explain the delay in filing the writ petition at paragraphs 3, 4, 5 and 6 to contend that they were not aware of order of the land Tribunal till notice of survey came to be issued in the year 2012. Relevant paragraphs explaining the delay as found in the writ petition reads as under:
"3. The name of Sri Bhyru Sddaram Naik was never entered any record of rights of these lands. However, on the basis of the Form No. 7, he got occupancy rights in his favor to the extent of one acre by the order dated 25.06.1979. The copy of the same is produced herewith at Annexure--B. He also got entered his name in the Revenue Records in the year 1985. Since the possession of the original owners were not disturbed and they continued to be in possession. Recently he has got bifurcated this land as two parts as 418/1 and 418/2. Sy. No. 418/2 measuring 1 acre of land to one Sri Ajai Chennaiah Pujar on 11.10.2010 through the power of attorney holder Sri S. Narayan S. Kode. No notice of this change in the Revenue records was also given to the actual owners of the land.
The said purchasers Sri Narayan S. Kole and Sri Prakash J. Pavale appears to have applied for Survey of the land upon which the notice of Survey was served on the Petitioner on 30.06.2012. The copy of the same is produced herewith at Annexure--C. The authorities came for survey on 1.7.2012 as evident from Notice dated 22.6.2012. On the said day the owners seriously objected to for survey and filed their written objections and specifically stated that they are owners and continued to be in possession as before. The copy of the same is produced herewith at Annexure--D. On these objections, the officials were not ready to survey the land. However, the respondents called the antisocial elements/goondas and pressurized the officials of the department of Survey and got the lands surveyed under pressure. The said Sri Narayan Kole who has taken power of attorney and Sri Pavale are the State agents and are trying to dispossess the original owners from the land by using all illegal means.
The Land Tribunal has granted occupancy rights to Respondent No. 3 on the basis of the averments in the Form No. 7 and without Notice and Opportunity to the Petitioner. The mentioning of admission of the Respondents in the order is wrong and incorrect as the there was no reasons for the Respondents to admit the tenancy of the so called tenant, when admittedly there was no tenancy and that they were not permitted before the Tribunal for want of notice. The thumb impression are not theirs and they deny the same. It is forged by the Respondent Nos. 3 and 4.
The Petitioners were not aware of the proceedings before the Land Tribunal. It was only recently notice as per Annexure--C was issued regarding survey of the land. It is only thereafter they had to enquired and collect the necessary documents. Now having been made known of the passing of the order of Land Tribunal as per Annexure--B they had to seek proper legal advise upon which the present writ petition is filed. There was no reason for the Petitioners to enquiry into the grant or otherwise of the land in question as the grantee therein has never attempted to get the benefit of the order of the Land Tribunal by cultivating the land and attempting to take over the possession as is now being attempted to and that he has allowed the possession of the land to remain with the Petitioners as before. It was only recently by taking undue advantage of the order of the Land Tribunal is now meddling with the land in question and by sale of the land to the 3rd parties are attempting to disturb the possession of the Petitioners. Therefore, immediately, the Petitioners had to enquire and obtain the documents and thereafter challenged the same. Therefore, the delay if any is for want of knowledge and due to the facts and circumstances as mentioned above apart from for want of notice. The delay is bona fide and unintentional and may be condoned failing which the right and the possession of the land will be lost for no fault of theirs. No prejudice would be caused to the Respondents in the event of delay being condoned."
In the instant writ petition, delay has occurred on two stages namely in paragraph 3, petitioners have admitted that 1 acre of land was sold to one Shri Ajai Pujar i.e., on 11.10.2010 and no notice of change in the revenue records was intimated to the actual owners of the land namely the petitioners. Thus, it would indicate that in the year 2010 itself the khata of the lands in question had been bifurcated and petitioners have not made any attempt to challenge the said revenue entries. That apart from the year 1985 onwards, revenue entries in respect of the lands in question has stood in the name of the 3rd respondent--tenant. Thus, from 1985 to 2010 petitioners have not raised their little finger to challenge said entries found in the revenue records. This is the first stage of delay. Second stage of delay is from the 2010 till the date of filing of writ petition i.e., in the year 2012. Thus, the explanation put forward for condonation of delay or delay in approaching the court by filing the present writ petition would not inspire confidence for being accepted. That apart, third party rights have crept in namely 3rd respondent--tenant is also said to have sold the property in favour of Shri Ajai Pujar and as such, third party rights have stepped in.
In the light of dicta laid by Hon''ble Apex Court in the case of Zakir Hussain Primary Teachers Education College and Another Vs. State of Bihar and Others, (2010) 6 JT 456 : (2010) 2 SCALE 127 : (2010) 12 SCC 517 : (2010) 3 UJ 1565 , as discussed herein above, the explanation offered for delay in filing writ petition can by no stretch of imagination be considered as reasonable so as to exercise the discretionary power to condone such inordinate delay of 37 years in challenging the impugned order.
In the light of discussion made herein above, present writ petition is liable to be dismissed on the ground of delay and latches and accordingly it stands dismissed.