KAMALSAB S/O. DAWOODSAB SAVANUR vs. THE STATE OF KARNATAKA

: 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 13TH DAY OF FEBRUARY, 2015 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO. 79811 OF 2013(LR) BETWEEN SRI. KAMALSAB S/O. DAWOODSAB SAVANUR AGE: 51 YEARS, OCC: AGRICULTURE R/O. KOTIGERI ONI, HANGAL, DIST:HAVERI. ... PETITIONER (BY SRI. D L LADKHAN, ADVOCATE) AND 1. THE STATE OF KARNATAKA R/BY SECRETARY DEPARTMENT OF REVENUE M.S. BUILDING, BENGALURU 2. THE LAND TRIBUNAL, HANGAL R/BY ITS SECRETARY TQ:HANGAL, DIST: HAVERI 3. SRI. RAMACHANDRA HEMAJIPPA SUGANDHI SINCE DECEASED BY HIS LRS 3A. SMT. SUNANDA W/O. KRISHNA SUGANDHI AGE: MAJOR, OCC: HOUSEHOLD WORK R/O. BAZAR GALLI, NEAR CHAVADI HANGAL, DIST: HAVERI

: 2 : 3B. SRI. VINAYAK S/O.KRISHNA SUGANDHI AGE: MAJOR, OCC BUSINESS R/O. BAZAR GALLI, NEAR CHAVADI HANGAL, DIST: HAVERI 3C. SMT. SRIDEVI D/O. KRISHNA SUGANDHI AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O. BAZAR GALLI NEAR CHAVADI HANGAL, DIST: HAVERI 4. SRI. ADBUL RAHIMANSAB ADAMSAB EKACHI SINCE DECEASED BY HIS LRS 4A. SRI. KAHALANDAR S/O. ABDUL RAHIMANSAB EKACHI AGE: MAJOR, OCC: BUSINESS R/O. KOTIGERIONI, HANGAL 4B. SRI. MOHAMMDKHASIM S/O. ABDUL RAHIMANSAB EKACHI AGE: MAJOR, OCC: BUSINESS R/O. KOTIGERIONI, HANGAL 4C. SRI. GOUSEMODIN S/O. ABDUL RAHIMANSAB EKACHI AGE: MAJOR, OCC: BUSINESS R/O. KOTIGERIONI, HANGAL. ... RESPONDENTS (BY SRI. RAVI V HOSAMANI, AGA FOR R1 & R2) THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE LAND TRIBUNAL, DATED:28/04/1988 AT ANNEXURE-B AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

: 3 : ORDER Heard Sri Ladkhan, learned counsel appearing for the petitioner and Sri Ravi V. Hosamani, learned Additional Government Advocate appearing for respondents 1 and 2. Question of issuing notice to other respondents does not arise since writ petition is being rejected/dismissed on the ground of delay and laches for the reasons indicated herein below. 2. Petitioner is seeking for quashing of the order passed by Land Tribunal dated 28.04.1988 Annexure-B whereunder the Tribunal after considering the rival claimants’ application granted occupancy rights in respect of both the applicants by granting occupancy rights to an extent of 6 acres 29 guntas in favour of each of the applicants. Petitioner is claiming to be a legatee under the Will executed by Smt Khatumbi w/o Nalband Modinsab. The grievance of petitioner is that property in question bearing Sy.No.374 measuring 13

: 4 : acres 18 guntas originally belonged to one Sri Nalband Modinsab and he died leaving behind his wife Smt.Katumbi and they had no issues. Said Smt.Katumbi is said to have executed a Will on 16.12.1986 in favour of petitioner and said Will was duly registered in the office of the Sub-Registrar vide Annexure-C whereunder she claims to have bequeathed the property in question to the petitioner and as such, petitioner claims to have continued in possession and enjoyment of the said property. It is contended that R3 and R4 attempted to disturb his actual possession and enjoyment of the agricultural land in question and as such, petitioner filed a complaint before the jurisdictional police which came to be registered as Cr.No.98/2000 vide Annexure-E against them and said criminal case is pending before the jurisdictional JMFC. It is further contended that legal heirs of R4 having failed in their attempt to dispossess the petitioner of his lawful possession of the

: 5 : property in question, have executed sale deeds which are void documents and subsequently purchasers have got the revenue records mutated to their names in the year 2006-07 and as such, petitioner has now approached this Court for quashing of the order passed by the Land Tribunal dated 28.04.1988. 3. It is not in dispute that order of the Tribunal came to be passed on 28.04.1988 i.e, about 27 years back. It is also not in dispute that R-3 and R-4 had filed Form No.7 claiming occupancy rights and they were not granted occupancy rights by the Land Tribunal and their application came to be rejected by the Land Tribunal by order dated 25.05.1977 Annexure-A. Respondent No.3 preferred Writ Petition No.48123/1977 against the order of Land Tribunal and this Court set aside the order passed by Land Tribunal and remanded the matter back to Land Tribunal by order dated 11.01.1983. It is thereafter Land Tribunal passed order dated 28.04.1988

: 6 : Annexure-B after remand. Perusal of the averments made in the petition does not even remotely suggest about having given any explanation for not approaching this Court challenging the order dated 28.04.1988. There is a delay of 27 years. Delay defeats equity. This Court exercising extraordinary jurisdiction would be loath to exercise jurisdiction under Article 226 of the Constitution of India when there is inordinate and unexplained delay for myriad reasons and one such reason can be of third party rights having been crept in. 4. Question of condonation of delay is one of discretion and is to be exercised depending upon the facts and circumstances of each case. As to whether such delay requires to be considered or not depends upon facts as pleaded in a given case. There cannot be any straight jacket Formula in this regard.

: 7 : 5. The question of condonation of delay is one of discretion and is to be exercised in the facts and circumstances of each case. It will depend upon the facts as pleaded in a given case. It is no doubt true that there is no limitation prescribed for the Courts to exercise the power under Article 226 of the Constitution of India. It is also not in dispute that there can never be a case where the courts cannot interfere in a matter after the passage of certain length of time. There may be cases where compelling facts would indicate that demand for justice is so compelling that this Court would be inclined to interfere in respect of such delay. Thus, it would ultimately be the discretion of the Court which will have to exercised fairly and justly so as to promote justice and not to defeat it. There cannot be any hard and fast rule insofar as either condonation of delay or refusal to condone the delay. Merely because, no third party rights have been created is hardly a ground for

: 8 : condonation of delay. The discretionary power under Article 226 of the Constitution of India would be exercised to grant relief only to a person whose conduct does not disentitle him to obtain such discretionary relief and from the conduct of the Act, if it is explicit that for such relief, the petitioners would not be entitled then condonation of delay would not be called for and this Court while exercising the power under Article 226 would be slow in condoning such delay. Lapse of time and delay are important factors which requires to be considered while exercising the power under Article 226 and such defence must be examined by taking into consideration the length of delay and the nature of the acts done during this interregnum period namely during such intervals. The Hon’ble Apex Court in the following case has considered the delay aspect in various perspective and held that while exercising the power under Article 226 of the Constitution of India, if delay is

: 9 : raised as a defence and if it is found on facts and circumstances of each case, then such delay is not to be condoned or the defence of delay is to be accepted. The relief under Article 226 should be refused in the following cases. i) MAHARASHTRA STATE ROAD TRANSPORT CORPORATION VS. BALWANT REGULAR MOTOR SERVICE, AMRAVATI AND OTHERS (AIR 1969 SC 329), “11. In any event xxx permits. In these circumstances we consider that there was such acquiescence in the R.T.A.’s order dated September 10/11, 1965 on the part of respondent No.1 and other private operators as to disentitle them to a grant of a writ under Article 226 of the Constitution. It is well established that the writ of certiorari will not be granted in a case where there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse

: 10 : party. The principle is to a great extent similar to though not identical with, the exercise of discretion in the court of chancery. The principle has been clearly state by Sri.Barnes Peacock in Lindsay Petroleum Company Vs Prosper Armstrong Hurd, Abraham Farewall, and John Kemp (1874) 5 PC 221 at p.239 as follows: “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 as, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect be 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 are 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

: 11 : 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”. This passage was cited with approval by this Court in a recent case – The Moon Mills Ltd., Vs M.R.Mehar, President Industrial Court, Bombay, AIR 1967 SC 1450. In our opinion, the principle of this decision applies to the present case and since respondent No.1 and the other private operators had not even pleaded any circumstances justifying the delay or their conduct, the High Court was in error in granting a writ of certiorari in their favour”. ii) RABINDRANATH BOSE AND OTHERS VS. THE UNION OF INDIA AND OTHERS (1970) 1 SCC 84, “32. The learned Counsel for the petitioners strongly urges that the decision of this Court in M/s. Tilokchand Motichand's case(supra)

: 12 : needs review. But after carefully considering the matter, we are of the view that no relief should be given to petitioners who, without any reasonable explanation, approach this Court under Art. 32 of the Constitution after inordinate delay. The highest Court in this land has been given Original Jurisdiction to entertain petitions under Art. 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. It is said that Art. 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay. 33. We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person

: 13 : ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years. It was on this ground that this Court in-Jaisinghani's case observed that the order in-that case would not affect Class II officers who have been appointed permanently as Assistant Commissioners. In that case, the Court was only considering the challenge to appointments and promotions made after 1950. In this case, we are asked to consider the validity of appointments and promotions made during the periods of 1945 to 1950. If there was adequate reason in that case to leave out Class II officers, who had been appointed permanently Assistant Commissioners, there is much more reason in this case that the officers who are now permanent Assistant Commissioners of Income tax and who were appointed and promoted to their original posts during 1945 to 1950, should be left alone. 34. Learned Counsel for the petitioners, however, says that there has been no undue

: 14 : delay. He says that the representations were being received by the Government all the time. But there is a limit to the time which can be considered reasonable for making representations. If the Government has turned down one representation, the making of another representation on similar lines would not enable the petitioners to explain the delay. Learned Counsel for the petitioners says that the petitioners were under the impression that the Departmental Promotion Committee had held a meeting in 1948 and not on April 29, 1949, and the real true facts came to be known in 1961, when the Government mentioned these facts in their letter dated December 28, 1961. 35. We are unable to accept this explanation. This fact has been mentioned in the minutes of the meeting of the Committee which met in Feb. 1952, and we are unable to believe that the petitioners did not come to know all these facts till 1961. But even assuming that the petitioners came to know all these facts only in Dec. 1961, even then there has been inordinate

: 15 : delay in presenting the present petition. The fact that Jaisinghani's case was pending before the High Court and later in this Court is also, no excuse for the delay in resenting the present petition. In the result, the petition fails and is dismissed. There will be no order as to costs.” iii) AFLATOON VS. LT. GOVERNOR, DELHI (AIR 1974 SC 2077), “11. Nor do we think that the petitioners in the writ petitions should be allowed to raise this plea in view of their conduct in not challenging the validity of the, notification even after the publication of the declaration under s. 6 in 1966. Of the two writ petitions, one is filed by one of the appellants. There was apparently no reason why the writ petitioners should have waited till 1972 to come to this Court for challenging the validity of the notification issued in 1959 on the ground that the particulars of the, public purpose were not specified. A valid notification under s. 4 is a sine qua non for initiation of proceedings for

: 16 : acquisition of property. To have sat on the fence and allowed the Government to complete the, acquisition proceedings on the basis that the notification under s. 4 and the declaration under s. 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be, putting a premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners (see Tilokchand Motichand and Others v. H. B. Munshi and Another(1); and Rabindranath Bose and Others v. Union of India & Others(2). 12. From the counter affidavit filed on behalf of the Government, it is clear that the Government have allotted a large portion of the land after the acquisition proceedings were finalised to Cooperative lousing societies. To quash the notification at this stage would disturb the rights of third parties who are not before the Court.”

: 17 : iv) HARI SINGH AND OTHERS VS. STATE OF U.P. AND OTHERS (AIR 1984 SC 1020), “4. At the out set we are of the view that the writ petition filed in July, 1982 questioning the notification issued in January, 1980 after a delay of nearly two and a half years is liable to be dismissed on the ground of laches only. It is no doubt true that the appellant have pleaded that they did not know anything about the notifications which had been published in the Gazette till they came to know of the notices issued under section 9 (3) of the Act but they have not pleaded that there was no publication in the locality of the public notice of the substance of the notification as required by section 4 (1) of the Act. It should be presumed that official acts would have been performed duly as required by law. It is significant that a large number of persons who own the remaining plots have not challenged the acquisition proceedings. The only other petition in which these proceedings are challenged is Civil Misc. Writ Petition No. 11476 of 1982 on the file of the High Court filed subsequently by Amar Singh and four others.

: 18 : Moreover in a small place like Kheragarh where these plots are situate, the acquisition of these lands would be the talk of the town in a short while and it is difficult to believe that the appellant who are residents of that place would not have known till July, 1982 that the impugned notification had been published in 1980. Any interference in this case filed after two and a half years with the acquisition proceedings is likely to cause serious public prejudice. This appeal should, therefore, fail on the ground of delay alone. 7. Appellant No. 1 claims to be the owner of plot No. 249. On behalf of the respondents it is urged that appellant No. 1 is recorded only as a co- tenure holder along with five others and they have not impeached the notifications. With regard to the allegation about the existence of a house on this plot, it is seen that the said fact is denied. The respondents rely upon some statements recorded by the revenue authorities suggesting that there was no house on this plot on the date of the notification. This is a disputed question of fact. Appellant No. 2 who claims to be the owner

: 19 : of plot No. 261 is stated to have purchased it on November 17, 1980 after the impugned notifications were published. The title of appellant No. 3 to plot No. 133 is denied by R. K Kannaujia, Secretary, Krishi Utpadan Mandi Samiti, Kheragarh. In this state of affairs where there are disputed questions of fact it cannot be said that the appellants have made out any case for interference under Article 226 of the Constitution”. v) NORTHERN INDIAN GLASS INDUSTRIES VS. JASWANT SINGH AND OTHERS (2003) 1 SCC 335), “9. Looking to the facts of the present case and conduct of the respondents 1-5, the High Court was not at all justified in ignoring the delay and laches and granting relief to them. As already noticed, the respondents 1-5 approached the High Court by filing writ petition almost after a period of 17 years after finalization of the acquisition proceedings. They accepted the compensation amount as or the award and sought for enhancement of the compensation amount without challenging the notification issued under Sections 4 and 6. Having sought

: 20 : for enhancement of compensation only, they filed writ petition even three years after the appeals were disposed of by the High Court in the matter of enhancement of compensation. There is no explanation whatsoever for the inordinate delay in filing the writ petitions. Merely because full enhanced compensation amount was not paid to the respondents, that itself was not aground to condone the delay and laches in filing the writ petition. In our view, the High Court was also not right in ordering restoration of land to the respondents on the ground that the land acquired was not used for which it had been acquired. It is well-settled position in law that after passing the award and taking possession under Section 16 of the Act, the acquired land vests with the Government free from all encumbrances. Even if the land is not used for the purpose for which it is acquired, the land owner does not get any right to ask for retesting the land in him and to ask for restitution of the possession. This Court as early as in 1976 in Gulam Mustafa & Ors. v. The State of Maharashtra and Ors. [ in para 5 has stated thus:-

: 21 : "At this stage Shri Deshpande complained that actually the municipal committee had sold away the excess land marking them out into separate plots for a housing colony. Apart from the fact that a housing colony is a public necessity, once the original acquisition is valid and title has vested in the municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long after the requiring authority diverts it to a public purpose other than the one stated in the Section 6(3)declaration." 12. If the land was not used for the purpose for which it was acquired, it was open to the State Government to take action but that did not confer any right on the respondents to ask for restitution of the land. As already noticed, the State Government in this regard has already initiated proceedings for resumption of the land.

: 22 : In our view, there arises no question of any unjust enrichment to the appellant Company.” vi) TUKARAM KANA JOSHI AND OTHERS VS. MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION AND OTHERS [(2013) 1 SCC 353], “13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the Courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party’s defence must be tried

: 23 : upon principles substantially equitable. (Vide: P.S. Sadasivaswamy v. State of T.N; AIR 1974 SC 2271; State of M.P. & Ors. v. Nandlal Jaiswal & Ors., & AIR 1987 SC 251; and Tridip Kumar Dingal & Ors. v. State of West Bengal & Ors., (2009) 1 SCC 768;) 14. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non- deliberate delay. The court should not harm innocent parties if their rights have infact emerged, by delay; on the part

: 24 : of the Petitioners. (Vide: Durga Prasad v. Chief Controller of Imports and Exports & Ors; AIR 1970 SC 769; Collector, Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors., AIR 1987 SC 1353; Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur & Ors., AIR 1993 SC 802; Dayal Singh & Ors. v. Union of India & Ors.; AIR 2003 SC 1140; and Shankara Co-op Housing Society Ltd. v. M. Prabhakar & Ors., AIR 2011 SC 2161) vii) SWAIKA PROPERTIES (P) LTD., AND ANOTHER VS. STATE OF RAJASTHAN AND OTHERS (2008) 4 SCC 695, “15. Insofar as the contention regarding the possession having not been taken is concerned, the respondents submit that the possession of the land in dispute has already been taken. Be that as it may, the award in respect of the land having become final, the State Government is vested with the powers to take possession of the land concerned and, therefore, there is no reason to disbelieve the claim of the State Government

: 25 : that the possession had been taken before the filing of the writ petition. Moreover, the appellants sought enhancement of compensation by filing reference application under Section 18 of the Land Acquisition Act, 1894. Simultaneously, the appellants filed writ petition before the High Court of Rajasthan after passing of the award. 16. This Court has repeatedly held that a writ petition challenging the notification for acquisition of land, if filed after the possession having been taken, is not maintainable. In Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd., where K. Ramaswamy, J. speaking for a Bench consisting of His Lordship and S.B. Majmudar, J. held : (SCC p.520, para 29.) “29. It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of

: 26 : the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches." In the concurring judgment, S.B. Majmudar, J. held as under : (Industrial Development Investment case, SCC pp.522-523 para 35) “35...... Such a belated writ petition, therefore, was rightly rejected by the learned Single Judge on the ground of gross delay and laches. The respondent-writ

: 27 : petitioners can be said to have waived their objections to the acquisition on the ground of extinction of public purpose by their own inaction, lethargy and indolent conduct. The Division Bench of the High Court had taken the view that because of their inaction no vested rights of third parties are created. That finding is obviously incorrect for the simple reason that because of the indolent conduct of the writ petitioners land got acquired, award was passed, compensation was handed over to various claimants including the landlord. Reference applications came to be filed for larger compensation by claimants including writ petitioners themselves. The acquired land got vested in the State Government and the Municipal Corporation free from all encumbrances as enjoined by Section 16 of the Land Acquisition Act. Thus right to get more compensation got vested in diverse claimants by passing of the award, as well as vested right was created in favour of the Bombay Municipal Corporation by virtue of the vesting of the land in the State

: 28 : Government for being handed over to the Corporation. All these events could not be wished away by observing that no third party rights were created by them. The writ petition came to be filed after all these events had taken place. Such a writ petition was clearly stillborn due to gross delay and laches. " 17. Similarly, in the case of State of Rajasthan & Ors. v. D.R. Laxmi following the decision of this Court in Municipal Corporation of Greater Bombay (supra) it was held :( D.R.Laxmi Case, SCC p.452, para 9) “9. .... When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case, is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion

: 29 : exercised by the learned Single Judge dismissing the writ petition on the ground of laches." 18. To the similar effect is the judgment of this Court in the case of Municipal Council, Ahmednagar v. Shah Hyder Beig & Ors. (2000) 2 SCC 48 this Court, following the decision of this Court in the case of C. Padma v. Dy. Secy. to the Govt. of T.N. held : (Shah Hyder Case, SCC p.55, para 17) “17. In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of the recent cases (C. Padma v. Dy. Secy. to the Govt. of T.N.)" viii) STATE OF MAHARASHTRA VS. DIGAMBAR [(1995) 4 SCC 683], “3. In the year 1991, respondent, an agriculturist of Vepani village in District Nandat

: 30 : of Maharashtra, filed a writ petition, W. P. No. 3124/91 under Article 226 of the Constitution of India in the Bombay High Court, Aurangabad Bench against the appellant, the State of Maharashtra. The relief sought in that writ petition was for issue of a direction to the Government of Maharashtra to grant compensation to him for his land alleged to have been utilised by the Government without his consent for Vepana - Gogri Road -- a road work carried out by the agencies of the State Government, in the course of execution of scarcity relief works undertaken by the State Government in the year 1971-72. When the said writ petition, as well as other 191 similar writ petitions, had been set down for admission before the Aurangabad Bench of the Bombay High Court, the Hon'ble Judges constituting that Bench, called upon the concerned Government Pleader to appear for the State by waiving service of notice on it. The learned Government Pleader, who, accordingly, appeared on behalf of the State in those writ petitions, urged for dismissal of the writ petitions on the ground of laches on the part of

: 31 : writ petitioners, i.e., undue delay of 20 years, which had occured in the filing of the writ petitions. But, the Bench of the High Court refused to entertain the ground of undue delay urged by the learned Government pleader against the grant of the relief sought for in the writ petitions and allowed the writ petitions by its judgment dated October 10, 1990. The portion of the judgment which could be regarded as material, reads thus: "Mr. Kakade, learned Government Pleader faintly urged that assuming that the petitioner/petitioners were right, but since possession was taken sometime in the year 1972, the present Writ petition filed in the year 1991 are hopelessly time barred and this delay itself is sufficient to reject the petition. We are afraid, in a welfare state, the State Government cannot take such attitude when citizens come before the Courts and complain that they have been deprived of their property without following due process of law and without paying the compensation. It certainly affects the valuable right of the citizen to

: 32 : receive compensation. There is no dispute that the possession of lands was taken sometime in 1972. There is no investigation on factual aspects by any agency so far. The question as to whether any land of the petitioner has been taken possession of in the year 1971-72 as alleged in the petition will have to be enquired into by a competent Officer. We accordingly direct the Collector or any other Officer nominated by him but not below the rank of Deputy Collector to initiate the proceedings under the Land Acquisition Act, 1894." 7. The main contention raised on behalf of the appellant - the State of Maharashtra against the sustainability of the judgment of the High Court under appeal by Shri Ashok Desai, its learned counsel, relates to exercise of directionary power conferred on the High Court under Article 226 of the Constitution for grant of relief of payment of compensation to the writ petitioner (respondent here) for his land alleged to have been utilised by officers of the State Government in the year 1971-72 for construction of a public road against his wish

: 33 : refusing to consider the plea of laches or undue delay of 20 years raised on behalf of the State Government as a ground disentitling the writ petitioner for grant of such discretionary relief. According to him, High Court's power under Article 226 of the Constitution to grant relief to a person by issue of directions, orders or writs for any other purpose' when was purely discretionary, judgment of the High Court by which such relief is granted becomes unsustainable, if it is shown that the same has not been founded on sound discretion, that is, on consideration of recognised judicial principles governing exercise of such discretion, to wit, laches, undue delay, acquiescence, waiver or the like on the part of the person seeking relief. Further, according to him, when it is well-settled that High Court's discretionary power under Article 226 of the Constitution could be exercised to grant relief only to a person whose conduct does not disentitle him to obtain such discretionary relief, the High Court cannot refuse to take into consideration petitioner's conduct which disentitles him for such relief merely because it is the State

: 34 : against which such relief is sought. When a citizen complains against the State which is interested in protecting his legal rights, by filing a petition under Article 226 of the Constitution, of infringement of his legal right and seeks exercise of High Court's discretionary power to grant him relief, the need for the High Court, to look into the conduct of the citizen disentitling the discretionary relief sought is, if any thing, of great public importance for grant of such relief against the State would result in loss to the State, i.e., public money. His contention, therefore, was that impugned judgment by which relief had been granted to the writ petitioner (respondent here) refusing to consider the ground of laches - undue delay of 20 years, urged on behalf of the State against grant of such relief was liable to be interfered with and set aside as that made by the High Court in wrong exercise of its discretionary power under Article 226 of the Constitution. The judgments of the High Court in 191 other writ petitions rendered by following the judgment impugned in this appeal were also liable to be anulled as a consequence.

: 35 : 11. As seen from the judgment under the present appeal, when the writ petition out of which the present appeal has arisen and other 191 similar writ petitions out of which the S.L.P's, which are yet to be registered by the Registry of this Court, have arisen, were listed before the High Court for preliminary hearing, the High Court has required the Government Pleader to appear for the State of Maharashtra - the common respondent in all of them by waiving service of notice upon it and heard learned counsel appearing for the writ petitioners and the learned counsel-High Court Government Pleader, by treating the writ petitions as listed for final hearing. As the relief claimed in the writ petitions filed under Article 226 of the Constitution in the year 1991 against the State of Maharashtra, the appellant here, was for directing it to pay compensation for writ petitioners' lands alleged to have been used without their consent by the State or its agencies for carrying out the scarcity relief works in the drought striken villages of the State of Maharashtra, during the year 1971-72,

: 36 : the grant of that relief by the High Court is resisted by the learned Government Pleader on the ground of laches or undue delay of 20 years on the part of the writ petitioners in seeking such relief. 12. Again, as seen from the judgment, the portion of which is excerpted by us earlier, the High Court has not chosen to consider the ground of laches or undue delay on the part of the writ petitioners as that which disentitled them to seek relief under Article 226 of the Constitution, because of its view that the ground of laches or undue delay cannot disentitle a citizen to obtain relief from the High Court under Article 226 of the Constitution when he claims compensation from the State for his land alleged to have been taken away by the State or its agencies. 13. The said view taken by the High Court that the ground of laches or undue delay on the part of a citizen does not disentitle him to obtain relief under Article 226 of the Constitution, when his claim for relief is based on

: 37 : deprivation of his property by the State or its agencies has since made it (High Court) to grant relief to the respondent in this appeal and other similarly situated, sustainability of such view requires our examination in this appeal. 24. Since we have held earlier that the person seeking grant of relief under Article 226 of the Constitution, even if it be against the State, is required to satisfy the High Court that he was not guilty of laches or undue delay in approaching it for relief, need arises for us to consider whether respondent in the present appeal (writ petitioner in the High Court) who had sought for relief of compensation on the alleged infringement of his legal right, had satisfied the High Court that he was not guilty of undue delay or laches in approaching it for relief. The allegation of the petitioner in the writ petition, as becomes clear from the judgment under appeal, was that although certain extent of his land was taken away in the year 1971- 72 by the agency of the State for the scarcity relief road works undertaken by the State

: 38 : Government in the year 1971-72, to find work for small agriculturists and agricultural labourers in the then prevailing severe drought conditions, without his consent, he was not compensated therefor, despite requests made to the State Government and various agencies in that regard eversince till the date of filing of the writ petition by him. 25. In our view, the above allegation is in no way sufficient to hold that the writ petitioner (respondent here) has explained properly and satisfactorily the undue delay of 20 years which had occurred between the alleged taking of possession of his land and the date of filing of writ petition in the High Court. We cannot overlook the fact that it is easy to make such kind of allegations against anybody that too against the State. When such general allegation is made against a State in relation to an event said to have occurred 20 years earlier, and the State's non- compliance with petitioners' demands, State may not at all be in a position to dispute such allegation, having regard to the manner in which it is required to

: 39 : carry on its governmental functions. Undue delay of 20 years on the part of the writ petitioner, in invoking the High Court's extraordinary jurisdiction under Article 226 of the Constitution for grant of compensation to his land alleged to have been taken by the Governmental agencies, would suggest that his land was not taken at all, or if it had been taken it could not have been taken without his consent or if it was taken against his consent he had acquiesced in such taking and waived his right to take compensation for it. 26. Thus, when the writ petitioner (respondent here) was guilty of laches or undue delay in approaching the High Court, the principle of laches or undue delay adverted to above, disentitled the writ petitioner (respondent here) for discretionary relief under Article 226 of the Constitution from the High Court, particularly, when virtually no attempt had been made by the writ petitioner to explain his blame- worthy conduct of undue delay or laches. The High Court, therefore, was wholly wrong in granting relief in relation to inquiring into the allegation

: 40 : and granting compensation for his land alleged to have been used for scarcity relief road works in the year 1971-72. As seen from the judgment of the High Court, the allegation adverted to above, appear to be the common allegation in other 191 writ petitions where judgments are rendered by the High Court following the judgment under appeal and which are subject of S.L.P's in this Court that are yet to be registered. We have, therefore, no hesitation in holding that the High Court had gone wholly wrong in granting the relief which it has given in the judgment under appeal, and judgments rendered following the said judgment in other 191 writ petitions, said to be the subject of S.L.P's or otherwise. All the said judgments of the High Court, having regard to the fact that they were made in writ petitions with common allegation and seeking common relief, are liable to be interfered with and set aside in the interests of justice even though only learned counsel appearing for a few writ petitioners were heard by us.”

: 41 : 6. Keeping the dicta laid down by the Hon’ble Apex Court in mind, when the facts on hand are examined, it would indicate that petitioner has not even whispered in the petition as to cause for delay in not approaching this Court immediately after the order of the Tribunal came to be passed. Undisputedly, petitioner is claiming right over the property in question through Smt. Katumbi, who was the respondent before the Land Tribunal and who was duly represented through counsel before the Land Tribunal as could be seen from the impugned order. Petitioner who claims title to the property in question through the Will dated 16.12.1986 executed by Smt. Katumbi would not get better right than what his Testator had. In the instant case, petitioner as noticed hereinabove is claiming through Smt.Katumbi who was the respondent before Land Tribunal and she is said to have executed a registered Will on 16.12.1986 in favour of petitioner and as such, petitioner herein claims to be

: 42 : in possession and enjoyment of the property. However, records do not disclose that pursuant to the said Will executed by Smt.Katumbi, petitioner having got revenue records mutated to his name. Even otherwise, when petitioner asserts that he is in possession and enjoyment of the property and there was an alleged threat of dispossession in the year 2000 as pleaded in paragraph 8 of the writ petition, the least that was expected of a person of reasonable prudence was to ascertain as to whether there was any order passed by the Land Tribunal or steps could have been taken to protect his rights. For reasons best known, he did not choose to do so. On the other hand, except asserting that he is in possession of the property, no steps were taken. Persons in whose favour Land Tribunal had granted occupancy rights had taken steps to get the revenue records mutated to their names and they have also sold property in favour of third parties. They in turn

: 43 : have got the Khatha mutated to their names and this is also admitted by petitioner at paragraph 9 of the petition. Thus, third party rights have crept in. When petitioner became aware of there being threat of dispossession of the land in question by R3 and R4, way back in the year 2000, petitioner did not raise his little finger at that point of time. Petitioner seems to have gone into deep sleep and allowed third party rights to enter. This was the 1st stage when petitioner could have challenged the impugned order. The second stage in which the petitioner could have taken steps to challenge the impugned order was when revenue entries standing in the name of 4th respondent came to be mutated in year 2006-2007 namely on 12.03.2007 in favour of purchasers of the lands in question. Even, at that point of time, petitioner did not take steps to question the order of the Land Tribunal. This is the second stage in which the petitioner being aware of the order of Land

: 44 : Tribunal was not challenged. There is no explanation forthcoming from the averments made in the writ petition as to why petitioner’s predecessor in title namely Smt.Katumbi, who was undisputedly respondent before the Land Tribunal and who had contested the matter, did not challenge the order of Land Tribunal impugned in this writ petition. As such, petitioner cannot be heard to contend that order of the Land Tribunal suffers from any infirmity or illegality whatsoever. For the reasons aforestated, this Court is left with no other option but to dismiss the petition on the ground of delay and laches.

Accordingly, it stands rejected/dismissed. Sd/- JUDGE Jm/-