NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2315 OF 2003

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  

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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  

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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  

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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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