Sri Srinivasa Bhat (D) By Lrs. & Ors vs Sri A. Sarvothama Kini (D) By Lrs. & Ors

Sri Srinivasa Bhat (D) by L.Rs. & Ors. ...Appellants

Versus

Sri A. Sarvothama Kini (D) by L.Rs. & Ors. ...Respondents

JUDGEMENT

R.M. Lodha, J.

This appeal, by special leave, is from Karnataka

High Court. The Division Bench vide its order dated November

21, 2001 set aside the order of the Single Judge dated June 1,

2001 and also the order of the Land Tribunal dated March 29,

1994 and directed the Land Tribunal to pass fresh order

concerning the subject land.

2. On March 29, 1994, the appellants were conferred

occupancy rights by the Land Tribunal in respect of Survey No.

108/17 (delineated as R.S. No. 108/17 C) admeasuring 27 cents situate at Shivalli village, Udupi Taluk, Karnataka. The

controversy relates to the aforesaid land to the extent of 7

cents. The present respondent nos. 1 to 5 (hereinafter referred

to as `writ petitioners') filed a writ petition before Karnataka High

Court on January 4, 1999 challenging the order of Land

Tribunal dated March 29, 1994. The writ petitioners set up the

case that the extent of property admeasuring 7 cents being the

portion of Survey No. 108/17 originally belonged to one Sri

Krishna Kini who transferred the said land to Sri Rangannaiah

(father of 5th writ petitioner) in 1949 and the purchaser came

into possession. Sri Rangannaiah mainly used the said land for

non-residential purposes as the property is situate in the heart

of Udupi city in a prime business locality and no agricultural

operations were ever carried out in the said land by Sri

Rangannaiah. After the death of Sri Rangannaiah, the said land

came to the share of 5th writ petitioner who transferred it to writ

petitioner nos. 1 to 4 and they came in actual possession and

enjoyment of the same. It was averred that in the beginning of

1998, Smt. Krishnaveniamma (Appellant No. 2 herein) tried to

interfere with their possession and hence a suit (O.S. No.

74/1998) was filed by them in the Court of IInd Additional Civil 2 Judge (Jr. Division), Udupi wherein it transpired that the present

appellants were asserting their rights in the said land on the

basis of occupancy rights conferred upon them by the Land

Tribunal. The writ petitioner nos. 1 to 4 then made enquiries

from the Land Tribunal, got the copy of the order dated March

29, 1994 and approached the High Court.

3. The present appellants who were respondents in

the writ petition filed their reply and raised diverse objections

viz; that the writ petitioners have no locus standi to maintain the

writ petition as they were not parties to the proceedings before

the Land Tribunal; that the challenge to the order dated March

29, 1994 passed by the Land Tribunal suffered from delay and

laches; that the writ petitioners concealed material facts with

regard to rejection of their prayer for temporary injunction in the

suit filed by them; and that in the suit, for consideration of the

application for temporary injunction, the court appointed

Assistant Director of Land Records as Commissioner, who after

factual assessment of the subject land submitted a sketch

stating therein that the claim of the writ petitioners was not

correct and they were not in possession and that they have no

right or interest in the subject land.

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4. The Single Judge, after hearing the parties and on

consideration of the material placed on record, held that the writ

petitioners were not able to show that they have any interest in

the land in respect of which occupancy rights have been

conferred in favour of the present appellants. The Single Judge

also observed that the writ petitioners did not disclose the

complete facts about the suit and approached the court in

challenging the order dated March 29, 1994 belatedly and,

accordingly, dismissed the writ petition by his order dated

June 1, 2001.

5. As noticed above, the Division Bench in writ appeal

interfered with the order of the Single Judge giving rise to this

appeal by special leave.

6. We find it curious that the Division Bench though

recorded the finding that writ petition was hopelessly belated

and there were other factors which would disentitle the writ

petitioners from any relief, yet it interfered with the order of the

Single Judge. What is more astonishing is that the Division

Bench even did not consider the findings recorded by the

Single Judge, particularly that for want of documentary

evidence, the version of the writ petitioner nos. 1 to 4 that the 4 said land has been conveyed to them by 5th writ petitioner and

they were in possession of that land cannot be believed. As a

matter of fact, the Single Judge recorded a positive finding that

the material produced by the writ petitioners do not show that

they have got any right or interest in Survey No. 108/17 to the

extent of 7 cents and, accordingly, they cannot be said to have

any locus standi to challenge the order dated March 29, 1994

passed by the Land Tribunal. On the face of the findings

recorded by the Single Judge which have not been disturbed,

there was no justification for the Division Bench to hold that the

overwhelming interest of justice would require that writ

petitioners be afforded an opportunity and thereby upset the

order of the Single Judge as well as that of the Land Tribunal.

The Division Bench without consideration of the reasons

recorded by the Single Judge interfered with that order which,

in our opinion, cannot be justified.

7. Moreover, the writ petitioners concealed vital facts

from the Court viz., rejection of their application for temporary

injunction by the trial court and the appointment of Court

Commissioner by the trial court and his report. The report

submitted by the Assistant Director of Land Records (Court 5 Commissioner) did not support the claim of writ petitioner nos. 1

to 4 in respect of 7 cents of land in Survey No.108/17. The

remedy under Article 226 of the Constitution is discretionary

and relief may be refused if it is found that the party invoking

such jurisdiction has not disclosed true, correct and complete

facts. Relief may also be refused in extraordinary jurisdiction

where writ petition suffers from laches and unexplained delay.

Insofar as instant case is concerned, the order of the Land

Tribunal dated March 29, 1994 was challenged in the writ

petition almost after five years. The explanation of writ

petitioner nos. 1 to 4 that they came to know of that order in

1998 hardly merits acceptance as it transpires that in 1994 itself

they made an application before the Tahsildar for effecting

changes in the mutation and other revenue record contending

that they have interest in 7 cents of land in Survey No. 108/17C

and after inquiry, the Tahsildar rejected their application. The

writ petitioners are guilty of suppression of material facts as

well. In the circumstances, there was hardly any justification for

the Division Bench to interfere with the discretion exercised by

the Single Judge.

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8. There is one more illegality in the order of the

Division Bench. Although, the writ petitioner nos. 1 to 4

claimed their right to the extent of 7 cents only in Survey No.

108/17 but the Division Bench set aside the entire order of the

Land Tribunal dated March 29, 1994 that pertained to 27 cents

of land. Admittedly, the writ petitioners did not claim any right

or interest beyond 7 cents.

9. The result is, that appeal is allowed and impugned

order dated November 21, 2001 passed by the Division Bench

in writ appeal No. 3473 of 2001 is set aside. No order as to

costs.

.....................

...J (Aftab Alam)

........................J (R. M. Lodha) New Delhi April 27, 2010.

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