IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09th DAY OF JANUARY, 2019 PRESENT HON’BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE AND HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO. 8839/2007 (LR-RES-PIL) BETWEEN:
1. K.SHREESHA UPADHYA AGED ABOUT 70 YEARS S/O LATE RAMACHANDRA UPADHYA LAXMINDRA NAGAR UDUPI-576102.
2. K. NARAYANA UPADHYA AGED ABOUT 65 YEARS S/O LATE VASUDEVA UPADHYA KADIYALI TEMPLE ROAD UDUPI-576102.
3. PROF. K. SRIPATHI UPADHYA AGED ABOUT 82 YEARS S/O LATE RAMA UPADHYA OPP. KADIYALI TEMPLE UDUPI-576102.
4. P. KRISHNARAJA BHAT AGED ABOUT 49 YEARS S/O VENKATARAMANA BHAT VADIRAJA CROSS ROAD UDUPI-576101 5. K. KRISHNAMURTHY ACHARYA AGED ABOUT 42 YEARS S/O K. ANANTHA ACHARYA KINNIMULKI, UDUPI-576101.
... PETITIONERS (BY SRI. S. VISHWAJITH SHETTY, ADVOCATE) AND:
1. THE HINDU RELIGIOUS INSTITUTIONS & CHARITABLE ENDOWMENTS COMMISSION REPRESENTED BY ITS COMMISSIONER CHAMARAJAPETE BENGALURU.
2. THE DEPUTY COMMISSIONER CUM HINDU RELIGIOUS & CHARITABLE ENDOWMENTS AUTHORITY UDUPI DISTRICT UDUPI.
3. THE CITY MUNICIPAL COUNCIL UDUPI, REPRESENTED BY ITS COMMISSIONER, UDUPI.
4. THE LAND TRIBUNAL, UDUPI REPRESENTED BY ITS SECRETARY TALUK OFFICE COMPOUND UDUPI-576101.
5. K. ANANTHARAM UPADHYA S/O LATE GOPALAKRISHNA UPADHYA R/at NO.106, ANANTHANAGAR MANIPAL-576104.
LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.5 K. ANANTHARAM UPADHYA 5(1) YASHODA UPADHYA W/O K. ANANTHARAM UPADHYA AGED ABOUT 74 YEARS R/AT NO.106, ANANTH NAGAR I STAGE, MANIPAL-576104.
5(2) DR. GOPALAKRISHNA KADIYALI UPADHYA S/O K. ANANTHARAM UPADHYA AGED ABOUT 61 YEARS R/AT NO.9, OVER HILL ROAD SEARSDALLI, NEW YORK-10583 U.S.A.
5(3) K. MURALIKRISHNA UPADHYA S/O K. ANANTHARAM UPADHYA AGED ABOUT 59 YEARS R/AT NO.106, ANANTH NAGAR I STAGE, MANIPAL 576104.
5(4) MADHVESH KRISHNA UPADHYA S/O K. ANANTHARAM UPADHYA AGED ABOUT 56 YEARS R/AT NO.11500, AUTMNWOOD WAY GUN ALLEN, VIRGINIA-23059 U.S.A.
5(5) BALAKRISHNA KADIYALI UPADHYA AGED ABOUT 52 YEARS S/O K. ANANTHARAM UPADHYA R/AT 803, ABHILASHA APARTMENTS NEAR TRINITY OPP: L.P. SAVANI ROAD ADAJAM GAM SURAT-305009.
5(6) MRS. SRIDEVI RAO D/O K. ANANTHARAM UPADHYA AGED ABOUT 54 YEARS R/AT B-32, BYSANI SKY WAY 14/1, 1ST CROSS, MOUNTAIN ROAD NEAR MADHAVAN PARK 1ST BLOCK, JAYANAGAR BENGALURU-560 011.
6. DR. V.S. ACHARYA AGED ABOUT 75 YEARS S/O SRINIVAS ACHARYA (FORMER TRUSTEE OF KADIYALI TEMPLE), NOW RESIDING AT “RAVI KIRANA”, KATTE ACHARYA MARG, KUNJIBETTU UDUPI-576102.
... RESPONDENTS (BY SRI R.K. PRASAD HEGDE, ADVOCATE FOR R-3;
SRI PADUBIDRI MOHAN RAO, ADVOCATE FOR R-5(3); R-1, R-2, R-4, R-5(1), R-5(5), R-5(6) & R6 ARE SERVED; R-5(2) & R-5(4) SERVICE HELD SUFFICIENT V/O DATED 13.06.2018 AND 12.12.2018) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE R-5 HAS NO AUTHORITY IN LAW TO REPRESENT THE ABOVE SAID TEMPLE IN ANY CAPACITY AND FOR ANY PURPOSE AND THEREBY TO UTILIZE THE FUNDS COLLECTED FROM THE GENERAL PUBLIC AND THE DEVOTEES OF THE TEMPLE FOR THE ALLEGED IMPROVEMENT OF THE PROPERTIES BELONGING TO THE SAID TEMPLE ON THE STRENGTH OF THE ALLEGED TEMPORARY PERMISSION ACCORDED BY THE R-1 AUTHORITY AS EVIDENCED IN THE LETTER ADDRESSED TO THE R-2 DATED 14.10.2005 VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR FURTHER ORDERS THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER Sri Vishwajith Shetty, learned counsel appearing for the petitioners has fairly submitted that prayer Nos.(i) to (iii) are not being pressed and he would confine the arguments to prayer No.(iv) as sought for in the writ petition, which reads as under:
“iv) The petitioners further seek a writ in the nature of certiorari or any other appropriate writ order or direction to quash the order of Land Tribunal dated 01/08/1981 in proceedings no.LRY:77- 2007-TRI-10337-80-81 passed by the 4th respondent Tribunal vide annexure-C whereby the 5th respondent has been declared as an occupant of the land comprised in Sy,no.128/25 measuring 14 cents of land in Shivally Village belonging to and in the possession of the temple, by playing fraud upon the temple by misusing his power as the then Managing Trustee of the temple;”
The relevant background aspects of this matter could be taken note of as follows: The Land Tribunal, Udupi, on the strength of the application filed by the respondent No.5 for grant of occupancy rights in Sy.No.128/25 measuring 14 cents in Shivally Village, adjudicated the said claim after issuing notice in Form No.8, which had been pasted on the Notice Board of Village Panchayat and Taluk Office; and held that the applicant was a tenant of the subject land for about 25 years and ordered for grant of occupancy rights by the order dated 01.08.1981 (Annexure-C).
The contention of Sri Vishwajith Shetty, learned counsel appearing for the petitioners is that, the respondent No.5 was Managing Trustee of the temple – “Kadiyali Sri Mahishamardhini Temple, Kadiyali, Udupi”, and by misusing his position, he had got declared himself as an occupant of the said land and as such, the impugned order of the Tribunal is liable to be set aside. It is further contended that the respondent No.5 committed several misdeeds and malpractices in the management and affairs of the temple.
Per contra, learned counsel appearing for the respondents, while reiterating the contentions raised in their statement of objections, have also submitted that the petitioner No.1 is one of the members of the Archaka family and that he was suspended during the year 1996. It is further submitted that the petitioner No.1 had filed a suit for claiming damages for suspension and remuneration which came to be dismissed and the matter is now pending in appeal; that he along with several others had also filed complaints; and the present writ petition is filed under the garb of public interest litigation, which in fact, is a private litigation of vengeance. Hence, they have sought for dismissal of the writ petition.
Delay defeats equity and there cannot be any dispute to this proposition. In fact, there are a plethora of decisions by the Hon’ble Apex Court on the issue regarding delay, and as to how a court of equity, exercising jurisdiction under Article 226 of the Constitution of India, will not extend its hands to such persons who approach the Court after inordinate delay. The Apex Court, in several cases, has held that stale claims ought not to be entertained by the High Courts in exercise of writ jurisdiction under Article 226 of the Constitution of India.
In the case of Shankara Co-operative Housing Society Limited v. M.Prabhakar & Ors: (2011) 5 SCC 607, the Apex Court has enumerated the relevant considerations for determining whether delay or laches shall come against a person who invokes writ jurisdiction of the Court, in the following:
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 Article 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”.
The facts in the instant case, as unfolded in the pleadings of the parties, would lead to an irresistible conclusion that the petitioner’s claim is fraught with delay and laches in challenging the order of the Tribunal dated 01.08.1981 by filing the present writ petition on 07.07.2007 i.e., after a lapse of 26 years. There is no explanation whatsoever with regard to the inordinate delay in challenging the said order. However, the issue of delay is sought to be staved off on the specious pleas of fraud against respondent No. 1.
There cannot be any dispute to the proposition that the principles of delay and laches would not apply when the plea of fraud is raised. It is no doubt true that fraud and justice never dwell together, and that persons who play fraud or make misrepresentations cannot be permitted to enjoy the usufructs of it. However, the manner in which fraud must be proved in a Court of law has been a subject matter of several decisions of the Apex Court .
In the case of A.C.Ananthaswamy & Ors v. Boraiah (Dead) By LRs: (2004)8 SCC 588, in the matter of proof of fraud, the Apex Court has held that:
“5. …..To prove fraud, it must be proved that representation made was false to the knowledge of the party making such representation or that the party could have no reasonable belief that it was true. The level of proof required in such cases is extremely higher. An ambiguous statement cannot per se make the representor guilty of fraud.”
In the instant case, we notice that there were several rounds of litigation between the parties, namely, the petitioner No. 1 and respondent No.5, where not only was the petitioner No. 1 conversant with the factual aspects, but kept mum without challenging the order of the Tribunal; and now under the vague plea of fraud; and that too, without any proof, the petitioner No.1 is attempting to raise such plea to defend his inaction and delay.
Apart from the above, on the facts as projected, it appears that the petitioner No.1 being a suspended Archaka of the temple in question, has adopted the circuitous route of this petition in the name of public interest litigation to litigate against the respondent No.5. In any case, there is no public interest involved in this petition.
For what has been observed hereinabove, we find no reason to entertain this writ petition and hence, the same stands dismissed.
Sd/- CHIEF JUSTICE Sd/- JUDGE sp