Basappa Vs Land Tribunal and Ors.

THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT 1961, PRAYING TO SET ASIDE THE ORDER AND JUDGMENT OF THE LEARNED SINGLE JUDGE OF THIS HON’BLE COURT DATED 21.08.2017, PASSED IN W.P.NO.81521/2012 (KLR-RR/SUR) AND ALLOW THE WRIT PETITION NO.81521/2012(KLR-RR/SUR), IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ AND

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HON'BLE MRS. JUSTICE K S HEMALEKHA

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ORAL JUDGMENT

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(PER: HON'BLE MRS. JUSTICE K S HEMALEKHA)

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This intra Court appeal is preferred by the petitioner in W.P.No.81521/2012 challenging the order dated 21.08.2017, whereby the writ petition was dismissed on

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the ground of delay and laches. The petitioner in the writ petition sought to challenge the order passed by the Land Tribunal dated 10.10.1979 passed in TNCSR No.660.

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Heard the learned counsel appearing for the appellant and learned Government Advocate for respondent Nos.1, 2 and 4. The private respondents are not served in this writ appeal.

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The appellant claims to be a tenant of an agricultural land bearing Survey No.132/2, measuring 10 acres 33 guntas of Kudli Salawadagi village, Tq. Basavana Bagewadi, Dist. Vijayapur (hereinafter referred to as the ‘petition land’ for short). He filed Form No.7 under the provisions of Karnataka Land Reforms Act, 1961. His application seeking occupancy rights came to be rejected by the Tribunal on 10.10.1979.

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Learned counsel for the appellant contends that

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the order of dismissal passed by the Tribunal in the year 1979 was not communicated to the appellant/petitioner. It

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is contended that appellant’s name appeared in the revenue records from 1971-72 and he has remained in peaceful possession of the petition land. Learned counsel contends that the appellant only became aware of

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dismissal order of the Land Tribunal in the month of February, 2012 after which he approached the Court by filing writ petition. He argues that the concept of “sufficient cause” as provided in law must be interpreted liberally to allow Courts to do substantial justice, particularly when procedural delays are not intentional or negligent.

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The contesting private respondents before the

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Writ Court filed objections, categorically denying the appellant’s claim and asserted that the appellant is the brother of deceased Bhimanagouda, and the father of the appellant had already taken his share in the joint family properties. It was contended that the land in question was allotted to Bhimanagouda and therefore, the appellant’s claim over the petition land is false and baseless. Further,

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that the Land Tribunal, in its order dated 10.10.1979

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specifically found that the petitioner failed to produce any documentary evidence in support of his claim of tenancy.

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Before the Writ Court, attention was drawn to

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the order sheet of the Land Tribunal dated 10.10.1979, wherein it was clearly recorded that the appellant/petitioner was present before the Land Tribunal and his statement was recorded on the very day i.e., 10.10.1979 and therefore, it was contended that the petitioner’s claim that he was unaware of the Land Tribunal's order until February, 2012 was rejected, as unbelievable.

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The learned Government Advocate supporting his contention in the Writ Court submits that the original records of the Land Tribunal was examined by the Writ Court and the learned Single Judge observed that the appellant was present during the hearing before the Land Tribunal on 10.10.1979 and had participated in the proceedings.

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Learned Single Judge relying upon the original

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records of the Land Tribunal produced before the Court, concluded that the appellant had knowledge about the Land Tribunal's order as early as 10.10.1979. Given the long delay of 34 years, and absence of any convincing explanation, the learned Single Judge held that the appellant has failed to establish “sufficient cause” for condonation of delay. Further, to condone the delay is discretionary and justice has to be balanced keeping in mind the rights of both parties and taking into account the facts and circumstances of the case, dismissed the writ petition on the ground of delay and laches.

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The private respondents have not been served in this appeal, the learned Government Advocate accepts notice on behalf of the respondent Nos.1, 2 and 4/State. Learned Government Advocate submits that the writ petition is rightly dismissed on the ground of inordinate delay and laches. It is submitted that the original records of the Land Tribunal clearly establish the appellant’s

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presence on 10.10.1979 and rejection of his Form No.7 application after due consideration which aspect was rightly considered by the learned Single Judge.

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We have given our anxious consideration to the contentions urged by the learned counsel appearing for the appellant and learned Government Advocate and perused the entire material placed before this Court.

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Having heard the learned counsel for the parties the point that arises is:

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Whether the order passed by the learned Single Judge in dismissing the writ petition on the ground of delay and laches warrants any interference?

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The delay and laches are facets of the same principle. In legal parlance, delay refers to the mere passage of time between when a cause of action arises and when legal remedy is sought. However, laches is a broader equitable doctrine that considers not just the

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delay, but whether the delay was unreasonable and

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whether it caused prejudice to the opposite party.

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“Equity aids the vigilant, not those who slumber on their rights”, meaning a person must act promptly and diligently, Courts disfavour stale claims. Even in the absence of a fixed limitation period, relief can be denied on the ground of unreasonable delay and prejudice to the opposite party. This maxim is central to the doctrine of delay and laches. This legal principle implies that the Courts of equity will not assist a person who, despite having a right, fails to assert it within a reasonable time. Such inaction or negligence amounts to waiver or abandoned of the right especially where others right or legitimate expectations may have intervened. The doctrine of delay and laches is firmly rooted in the principle that the Court's equitable jurisdiction must not be used to revive stale, dormant claims.

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The Apex Court in the case of U.P. Jal Nigam

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and Another Vs. Jaswant Singh and Another¹ (U.P. Jal

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Nigam) observed that the question of delay and laches has been examined by the Court in series of decisions and the

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delay and laches has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person who is not diligent of his rights and acquiesces with the situation, his writ petition cannot be heard after couple of years on the ground that same relief should be granted to him as was granted to a person similarly situated who was vigilant about his rights. The Apex Court while considering such a situation held at Para No.12, as under:

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“12. The statement of law has also been summarised in Halsbury's Laws of England, para 911, p. 395 as follows:

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“In determining whether there has been such delay as to amount to laches, the chief points to be considered are:

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1 (2006) 11 SCC 464

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(i) acquiescence on the claimant's part; and

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(ii) any change of position that has occurred on the defendant's part.

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Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.”

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(emphasis supplied)

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Way back in the year 1975, the Apex Court in

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the case of P.S. Sadasivaswamy Vs. State of Tamil Nadu² (P.S. Sadasivaswamy), wherein it is held that it is not that there is any period of limitation for the Courts to

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exercise their powers under Article 226 nor is it that there 2 (1975)1 SCC 152

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can never be a case where the Courts cannot interfere in a

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matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise its extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. Entertaining such petitions is a waste of time of the Court.

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The appellant having allowed 34 years to pass without taking any remedial steps despite being present before the original proceedings, has failed to show any “bonafide” or “sufficient cause” for delay. The concept of “sufficient cause” is a well settled legal proposition in Indian jurisprudence, particularly in the context of condonation of delay under Section 5 of the Limitation Act, 1963 and in broader principles of equity and judicial discretion. “Sufficient Cause”, means a cause which is beyond the control of the party invoking it and which

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prevents them from approaching the Court within the prescribed time. It must be reasonable, bonafide and not imaginary or illusionary. It is settled proposition of law that, “the burden lies squarely on the applicant to demonstrate a cause that is genuine, bonafide and explain the entire period of delay”. Mere assertion of ignorance or general statement of hardship are insufficient unless supported by credible evidence. The appellant’s unexplained inordinate delay over 34 years in challenging the Land Tribunal order is fatal. It is settled principle that “equity aids the vigilant and not those who slumber on their rights” squarely applies to the present facts.

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Under Halsbury’s Law of England, paragraph No.906 “Effect of unconscionable delay (‘laches’) or acquiescence”, which reads thus:

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“Nothing in the Limitation Act 1980 affects any equitable jurisdiction to refuse relief on the ground of acquiescence or otherwise. The consequence of this saving is that in certain cases a claim to relief may be barred on the equitable grounds of acquiescence or

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unconscionable delay (‘laches’), where time has not expired under any limitation enactment or where no such enactment is applicable. Thus, the effect of acquiescence by any person in the violation of a right at the time when the violation is in progress, or after the violation is committed but before the expiry of the limitation period, can operate to deprive that person of any right to claim relief against the violation. Moreover, despite the fact that under the enactments relating to the limitation of claims against trust property no period of limitation is applicable, proceedings against a trustee for breach of trust may be barred in certain circumstances by the laches of the beneficiary”.

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The law recognizes that a person may lose the right to rely on a legal entitlement especially equitable rights, if the unreasonably delay in enforcing it and in doing so allow others to reasonably rely on the status quo. The said paragraph encapsulates the principle that equity demands both prompt of assertion of rights and fairness.

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19. In Lindsay Petroleum Company Vs. Surd

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and others, disposed of on 20.01.1874, Privy Council held that:

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“Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay is most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any Statute of Limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay, and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other so far as relates to the remedy. In this case, the delay was at all events not of very long duration, because the conveyance to the Company was dated

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about fifteen months before the filing of the bill; the whole purchase money was not paid before that time; and there is nothing which would justify us in reckoning the currency of time from an earlier period than that conveyance. Neither were any acts done in the interval, as it appears to us, at all material to the equity between the parties. There was possession taken, no doubt, but it would be a very novel proposition that mere possession is to be a bar, so as to raise a counter equity in cases of this description. Nothing appears to have been done beyond the sinking of a single well, by way of trial, upon the ground.”

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The appellant having been present before the

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Land Tribunal at the relevant time, cannot now seek to reopen a matter long concluded, to the determinant of legal certainty and fairness. The appellant's inaction for over 34 years amounts to gross delay and laches. Courts have consistently held that even where no limitation is prescribed, relief must be sought within a reasonable time.

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