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2004(4) Supreme 734
SUPREME COURT OF INDIA
(From Karnataka High Court)
Brijesh Kumar & Arun Kumar, JJ.
Dattatreya & Ors. -Appellants
versus
Mahaveer & Ors. -Respondents
Civil Appeal No. 35 of 1999
Decided on 31-5-2004
Counsel for the Parties :
For the Appellants : Rajinder Sachar, Sr. Advocate, Sudarsh Menon, Mahesh Singh and G.S. Sharma, Advocates.
For the Respondents : P.A. Kulkarni, Khwairakpam Nobin Singh and Sanjay R. Hegde, Advocates.
Held : Merely by filing a writ petition, impugning an order passed 11 years ago, which petition is dismissed on the ground of laches, does not mean that it automatically by itself reopens the whole matter to be examined in any other collateral proceedings and the finality attained by the order is lost. Therefore, it is not a question of bar of res judicata but the point is that in the year 1985 when the application was moved by the appellants under the provisions of the Karnataka Certain Inams Abolition Act, 1977 for registration of occupancy over the land in dispute by virtue of provisions contained in Section 5(2)(i) of the aforesaid Act, the land was not available for the purpose, as in the year 1979 itself the respondents were granted rights of occupancy tenancy by a forum of competent jurisdiction. The order dated 3.7.1979 is not a void order so as to be ignored in any collateral proceedings nor it was put in question in the proceedings initiated by the appellants in 1985. The order passed by the learned single Judge in writ petition No. 5495 of 1992 behind the back of the respondents and obtained by suppressing the material facts does not compel the Tribunal or the learned single Judge to allow the claim of the appellants despite the facts and circumstances as enumerated above. It is not understandable that how the single Judge could order for fresh consideration of the application which was moved by the respondents in 1974 for rights of occupancy tenancy under Section 45 of the Karnataka Land Reforms Act reopening the whole matter, except on the basis of the decision in the case of Basappa (supra) which has been totally misapplied to the present case. The Division Bench has rightly held that the question of validity of order dated 3.7.1979 was not in question before the Tribunal in the petition moved by the appellants in the year 1985 nor it was a matter for consideration before the learned single Judge. The order of Single Judge has been rightly set aside by the Division Bench in appeal. (Para 13)
In view of the discussion held above, we find no good reason to interfere in the order passed by the Division Bench except to delete some of the observations which are a bit harsh and were not necessary to be made for disposal of the case, viz. part of the order where it is observed that "the appellant had played fraud and there was collusion between the wahivatdars and members of the Land Tribunal and the Members had gone ahead unashamedly to grant occupancy tenancy to the appellants", further the observation that the appellants were otherwise liable to be prosecuted. (Para 15)
JUDGMENT
Brijesh Kumar, J.-The dispute in the present appeal relates to Sy.No. 1033/1 + 2 situate in Belgaum belonging to the temple Shri Chandramouleshwara Dev of Belgaum which is a registered public trust. The respondents in this appeal claimed occupancy tenancy rights under the provisions of Section 45 of the Karnataka Land Reforms Act, 1961 by moving an application dated 23.8.1974. The aforesaid claim of the respondents was considered by the Land Tribunal, Belgaum and by order dated 3.7.1979 it declared the respondents as tenants and granted occupancy tenancy rights under Section 45 of the Karnataka Land Reforms Act (for short the Act ) with effect from 1.3.1974. While passing the aforesaid order, the Tribunal made a reference to the relevant records and the statements of the parties and it also noted the fact that the tenancy of the respondents, who were applicants, was admitted by Madhukar Adhyapak, one of the appellants in this appeal. The relevant date for accrual of rights of occupancy tenancy is 1.3.1974, on which date the Tribunal came to the conclusion, on the basis of the evidence on the record, that the respondents were in possession over the land in dispute as tenants. The order dated 3.7.1979 was not challenged by any party by filing any appeal, revision or any other proceedings in any court whatsoever except for the first time in 1990 in filing a writ petition. In the meantime in 1981 the occupancy tenancy certificate was also issued in favour of the respondents.
2. The appellants, however, on 22.6.1985 moved an application under Section 5 of the Karnataka Certain Inams Abolition Act, 1977 (Karnataka Act No. 10 of 1978) in Form I for registration as occupants over the same land namely, Sy.No. 1033/1+2 claiming possession over the land for a very long time and having been rendering service to the temple by performing religious worship. The appellants claimed to be the wahivatdars of Shri Chandramouleshwar Devasthanam, Belgaum. After five years of filing of the aforesaid application the appellants filed a writ petition No. 14033 of 1990 challenging the order dated 3.7.1979 granting occupancy tenancy rights in favour of the respondents. The aforesaid writ petition was dismissed by order dated June 3, 1991. The order dated 3.7.1979 appears to have been challenged on the ground of lack of individual notice and that it was urban land, therefore, the Karnataka Land Reforms Act would not be applicable. The court also discussed the point relating to service of notice and found that the parties were represented. In any case, ultimately it was held that the writ petition was filed nearly 11 years next after the impugned order of the Tribunal hence the petition was dismissed on the ground of laches. The matter rested at that and the order of the High Court dated 3.6.1991 was not challenged any more and was allowed to become final.
3. After the dismissal of the writ petition No. 14033 of 1990 the appellant filed another writ petition No. 5495 of 1992. The grievance raised in the above noted writ petition seemed to be that no orders have been passed on the application filed by the appellant in Form No.1 dated 22.6.1985 under the provisions of the Karnataka Certain Inams Abolition Act, 1977. The court allowed the writ petition directing the Tribunal to dispose of the application on merits in accordance with law within a period of four months from the date of receipt of the order. It would be worth noticing that the private respondents in whose favour occupancy tenancy was granted by order dated 3.7.1979 were not impleaded as the respondents in the writ petition and the order was passed in their absence. However, in view of the direction issued by the High Court the Tribunal took up the matter for decision on merits.
4. The Tribunal by order dated 21.9.1993 granted occupancy rights to the appellants under Section 12(2) of the Karnataka Certain Inams Abolition Act. While disposing of the application the Tribunal took note of the
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