IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NOs.58165-58166/2018 (LR) BETWEEN Mr. JOSEPH MARK FERNANDEZ S/O LATE OSWALD FERNANDEZ AGED ABOUT 48 YEARS OCCUPATION: AGRICULTURE R/AT BONDANTHILA VILLAGE PADU POST, MANGALURU TALUK, D.K. DISTRICT 575 029. ... PETITIONER (BY SRI PRASANNA V R, ADVOCATE) AND 1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF REVENUE, M.S. BUILDING, BENGALURU - 560 001.
2. THE LAND TRIBUNAL MANGALURU, REPRESENTED BY ITS CHAIRMAN MANGALORE TALUK, D.K. DISTRICT -575 001.
3. SRI. MONAPPA POOJARY S/O LATE KORAGA POOJARY AGED ABOUT 80 YEARS R/AT BORUGUDDE HOUSE, R/AT BONDANTHILA VILLAGE PADU POST, MANGALURU TALUK, D.K. DISTRICT 575 029. ... RESPONDENTS (BY SRI B.S.BUDIHAL, HCGP FOR R1 and R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED:07.10.1981 IN LRT NO.4234/1979-80, PASSED BY THE 2ND RESPONDENT - LAND TRIBUNAL, MANGALURU, VIDE ANNEXURE-A TO THE EXTENT OF GRANTING OCCUPANCY RIGHT OVER AND ABOVE 10 CENTS OF LAND IN SY.No.200/3 OF BONDANTHILA VILLAGE, MANGALURU TALUK, D.K.DISTRICT AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Learned High Court Government Pleader takes notice for respondent Nos.1 and 2.
2. The petitioner herein has sought for quashing the order dated 07.10.1981 (Annexure ‘A’ to the petitions) passed by the second respondent – Land Tribunal, Mangaluru Taluk, Mangaluru, insofar as it relates to grant of occupancy rights in respect of 12 cents (over and above 10 cents of land claimed by the applicant in Form No.7) in Sy. No.200/3 (200/3F) situate in Bondanthila village, Mangaluru Taluk, Dakshina Kannada District, in favour of the third respondent herein – Sri Monappa Poojary.
3. Petitioner has also sought for quashing of another order dated 07.10.1981 (vide Annexure ‘B’ to the petitions) passed by the second respondent - Land Tribunal insofar as it pertains to rejecting his claim in respect of an extent of 12 cents of land in Sy. No.200/3 situate in the aforesaid village. Further, the petitioner is seeking direction to the second respondent to club both the rival claims made by his deceased father, Sri Oswald Fernandez, and the third respondent herein – Sri Monappa Poojary and reconsider the same insofar as the land in Sy. No.200/3 is concerned.
4. It is the case of the petitioner that his father, Sri Oswald Fernandez, was chalageni tenant in respect of nine items of lands including the land measuring 01 Acre 09 cents in Sy. No.200/3 situate in the aforesaid Bondanthila village under the ownership of one Mr. A.F. Lobo. His father filed an application in Form No.7 under Section 48A of the Karnataka Land Reforms act, 1961, seeking conferment of occupancy rights in respect of the said lands. The said application was registered as L.R.T.4237:79-80 before the Land Tribunal. It is stated that during the pendency of the said proceedings, petitioner’s father died. Hence, petitioner’s mother, Smt. Stella Pinto, was brought on record as the legal heir of Sri Oswald Fernandez.
5. The records would indicate that the Land Tribunal issued notice to the parties and got conducted survey of lands in respect of which occupancy rights were sought by Sri Oswald Fernandez. However, the land owner, Sri A.F. Lobo, did not participate in the proceedings before the Land Tribunal. On behalf of the applicant – Smt. Stella Pinto, her son, Sri Leo Fernandez, appeared before the Land Tribunal and he gave his statement to the effect that his father was a chalageni tenant under the land owner - Sri A.F. Lobo and Monappa Poojary, who was a tenant under his father, was residing in land bearing Sy. No.200-3F. He contended that survey was conducted in his absence and surveyor had wrongly measured the extent of land, which was in possession of the tenant – Monappa Poojary as 22 cents (instead of 10 cents) in Sy. No.200/3F. However, he conceded for grant of occupancy rights in respect of 10 cents of land in Sy. No.200/3F in favour of Monappa Poojary and sought that the occupancy rights in respect of the remaining lands may be granted in favour of his mother, Smt. Stella Pinto.
6. The Land Tribunal after considering the statement of Sri Leo Fernandez and the material available on record including the survey report and spot inspection report and in the light of the fact that the applicant in proceedings No. L.R.T.4234:79-80 – Monappa Poojary was found to be in possession of 22 cents of land in Sy. No.200-3F, passed the order dated 07.10.1981 (Annexure ‘B’ to the petitions) holding that Smt. Stella Pinto, the wife of Oswald Fernandez, was entitled to grant of occupancy rights in respect of nine items of lands mentioned therein including land measuring to an extent of 87 cents in Sy. No.200-3.
7. The third respondent - Monappa Poojary, who claimed to be tenant under Sri Oswald Fernandez, the father of the petitioner, had also filed an application in Form No.7 before the Land Tribunal on 14.01.1977 seeking grant of occupancy rights in respect of 10 cents of land in Sy. No.200-
3. Based on the said application, proceedings were registered in L.R.T.4234:79-80 before the Land Tribunal. In the said proceedings, the Land Tribunal issued notice to both the parties, recorded the statement of the applicant – Moonappa Poojary as well as the son of the land owner, Sri Leo Fernandez, who conceded for grant of occupancy rights in respect of 10 cents of land in Sy. No.200-3F in favour of the applicant.
8. The Land Tribunal after considering the statements of the applicant as well as the land owner’s son, Sri Leo Fernandez and documents including survey report, RTC., and spot inspection report, passed the order dated 07.10.1981 (Annexure ‘A’ to the petitions), conferring occupancy rights in respect of 22 cents of land in Sy. No.200-3F in favour of the applicant – Monappa Poojary. The aforesaid two orders of even date i.e., 07.10.1981 passed by the Land Tribunal insofar as they relate to grant of occupancy rights in respect of land in Sy. No.200-3 / Sy. No.200-3F are called in question in these writ petitions.
9. Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondents. Perused the material on record.
10. The grievance of the petitioner is that his father, Sri Oswald Fernandez, in his application in Form No.7 had sought for grant of occupancy rights in respect of 01 Acre 09 cents in Sy. No.200-3, but the Land Tribunal has conferred occupancy rights in favour of his mother, Smt. Stella Pinto, only to an extent of 87 cents in Sy. No.200-3. According to the petitioner, the Land Tribunal ought to have conferred occupancy rights in respect of another extent of 12 cents of land in Sy. No.200-3. It is contended that the Land Tribunal has erroneously conferred occupancy rights in respect of the remaining 22 cents in Sy. No.200-3 in favour of the third respondent – Monappa Poojari, agricultural coolie / tenant under his father, ignoring the fact that the said tenant had filed application in Form No.7 seeking occupancy rights in respect of only 10 cents of land in the said Sy. No.200-3. It is stated that the petitioner’s father died even before the proceedings in LRT.4237/79-80 was decided by the Land Tribunal on 07.10.1981.
11. Admittedly, the petitioner’s mother, Smt. Stella Pinto, and his brother, Sri Leo Fernandez, had participated in the proceedings before the Land Tribunal. However, they are not parties to these petitions. It has come on record that petitioner’s brother, Sri Leo Fernandez, had conceded for grant of occupancy rights in respect of 10 cents of land in Sy. No.200-3F in favour of respondent No.3 herein – Monappa Poojary. In the fact situation, it is clear that the petitioner has slept over the matter for nearly 37 years and thereafter, has come up with the present writ petitions contending that there is an error on the part of the Land Tribunal in considering the prayer of counter claimant – respondent No.3 in this proceedings. However, this Court is of the considered opinion that the orders passed by the Land Tribunal, which are impugned in these petitions, are of the year 1981. The present writ petitions filed nearly after a lapse of 37 years from the date of the impugned orders cannot be entertained in the absence of any explanation offered by the petitioner as to why he kept quiet for all these years without challenging the said orders.
12. In that view of the matter, this Court is of the considered opinion that the present writ petitions are required to be dismissed solely on the ground of delay and laches.
13. Accordingly, these Writ Petitions are dismissed.
14. Learned High Court Government Pleader is directed to file his memo of appearance within two weeks from today.
Sd/- JUDGE sma