Full Judgment
1. This writ petition is filed by the son of the original landlord against whom the contesting respondent 3 had filed Form 7 claiming occupancy right to challenge the order dated 16-10-1981 granting occupancy right, copy whereof is at Annexure-A to writ petition.
2. I heard the learned Counsel for the petitioner Smt. Pushpalatha appearing for Sri A. Keshava Bhat. Sri Sanath Kumar Shetty, the learned Counsel appearing for the contesting respondent 3. The respondent 1-State and the respondent 2-Land Tribunal, Mangalore are served with notices and they remained absent before Court. Sri S.S. Guttal, the learned High Court Government Pleader is therefore directed to take notice for the said two respondents.
3. The short point in the writ petition is whether the impugned order passed by the respondent 2-Land Tribunal can sustain for want of notice or not. In the instant case, the learned Government Pleader had secured the records from the Land Tribunal for my perusal. On perusal of the records of the Land Tribunal it is found that the notice at the first instance was attempted to be served in person to the original landlord on 21-6-1980 and as he was not available, the same could not be served. It is thereafter on the second occasion, the Land Tribunal had issued the notice yet again addressed to the original landlord on 5-9-1980, 10-10-1980 and again on 14-8-1981, but the notices were not served with for one reason or other. Therefore, when the Land Tribunal finally issued the notice to the landlord on 24-9-1981, on that occasion too, the notice could not be served on the original landlord and for that reason the notice was tendered to one of the adult members of the family of the landlord but the same was refused by the adult member of the family too. On such a refusal by the adult member of the tenant, the notice in question was affixed on the door of the original landlord.
4. From the above records one thing is clear that the notice as contemplated under Rule 43 of the Karnataka Land Reforms Rules, 1974 was not served on the original landlord. Under Rule 43(d), the following modes of service are contemplated. They are: (i) delivery or tendering of the notice or order to the person concerned or his Advocate or authorised agent, or (ii) by delivering or tendering the notice or order to some adult member of the family; or (iii) by sending the notice or order to the person concerned by registered post acknowledgement due; or (iv) if none of the aforesaid modes of service is practicable, by affixing the notice or order in some conspicuous part of the last known place of residence or business of the person concerned.
5. On reading of the above rule, it appears to me that the notice has to be served to the party only in the mode as above and not in any other way. In the instant case, admittedly the notice was attempted to be served on the person but in his absence it was tendered to the adult member of the family and on such refusal by the adult member, the notice came to be affixed on the door of the original landlord instantly. Unfortunately, that is not the mode of service that is contemplated under the rule, for in the rules it is clearly provided that if none of the three modes as set-out at (i) to (iii) was not practicable, it is only thereafter the notice or order be affixed in some conspicuous place of residence; obviously that can be only on the orders of the Land Tribunal.
6. To advert to the Rule 43 of the Land Reforms Rules, the same reads as hereunder:
'43. Manner of service of notice or order under the Act or the Rules.--Any notice or order issued or made under the Act or these Rules shall be served on the persons concerned in the following manner:
(a) in the case of any company, society or association of individuals, whether incorporated or not, be served.-
(i) on the Secretary or any Director or other Principal Officer of the company, society or association of individuals, as the case may be; or
(ii) by leaving it or sending it by registered post acknowledgement due addressed to the company, society or association of individuals, as the case may be, at the registered office, or if there is no registered office, then at the place where the company, society or association of individuals, as the case may be, carries on business.
(b) in the case of any firm, be served.-
(i) upon any one or more of the partners; or
(ii) at the principal place at which the partnership business is carried on, upon any person having at the time of service, the control or management of the partnership business.
(c) in the case of a family, be served upon the person in management of such family or of the property of such family, in the manner specified in clause (d).
(d) in the case of an individual person, be served.-
(i) by delivering or tendering the notice or order to the person concerned or his Advocate or authorised agent;
(ii) by delivering or tendering the notice or order to some adult member of the family; or
(iii) by sending the notice or order to the person concerned by registered post acknowledgement due; or
(iv) if none of the aforesaid modes of service is practicable, by affixing the notice or order in some conspicuous part of the last known place of residence or business of the person concerned.
(v) if the last known place of resident or business of the person concerned could not be ascertained despite reasonable efforts in that behalf and service as per clause (iv) also becomes impracticable, then by affixing the notice or order to some conspicuous part on the land, if any, to which such notice or order refers'.
7. In the instant case in hand, it appears that the person who had tried to serve the notice on the original landlord attempted to serve the copy thereof on the adult member of the landlord in the absence of the landlord and it is thereafter, and instantly it was affixed at the very moment on the door of the original landlord. If that is the mode of service that was attempted to for service of notice on the original landlord, I do not think that can be in strict compliance of Rule 43 of the Land Reforms Rules in the matter of service of notice to the parties, for there was no order of the Land Tribunal to serve notice on the landlord by affixture.
8. In that view of the matter, I do not think the impugned order passed by the Land Tribunal can sustain in law. In the instant case in hand, of course there is a delay of 12 years in resorting to the instant writ petition. That delay according to the petitioner is for the reason that he had come to know of the order of the Land Tribunal when the petitioner resorted to file the writ petition. The pleadings thereto as found in Para 6 read as hereunder:
'(6) Petitioner came to know the order of the Land Tribunal only recently, when he tried to change the khatha of the land to his name after his father's death. Hence, the delay in filing the writ petition which may kindly be condoned in the interest of justice'.
9. In fact, the learned Counsel for the contesting respondent 3 pointed out that the petition has to be dismissed by this Court on the ground of laches alone. I do find that there is inordinate delay in resorting to the writ petition. But nevertheless, that delay has to be viewed in the light of the pleadings in para 6 as above and further in the light of the position that the notice by the Land Tribunal was not served on the original landlord, the father of the petitioner in consonance with Rule 43 of the Land Reforms Rules. In that view of the matter, in my considered view, the impugned order passed by the Land Tribunal cannot sustain in law. In the result, I pass the following: The order dated 6-1-1981 in No. LRT(10) 2231:1978-79, passed by the X Land Tribunal, Mangalore, whereunder the Tribunal had granted occupancy right in respect of 43 cents of land in Sy. No. 111/11 of Adyapadi Village is quashed.
The matter is remanded to the Land Tribunal for a de novo enquiry by affording the petitioner herein an opportunity to challenge the claim of the contesting respondent 3.
10. Let the Land Tribunal hold such an enquiry after issuing notices to the petitioner herein as well as the contesting respondent 3. The Land Tribunal is further directed to hold such enquiry in strict compliance of Rule 17 of the Land Reforms Rules. It is made clear that all the contentions of the parties are kept open.
11. The writ petition therefore succeeds and accordingly allowed.
12. Sri S.S. Guttal, the learned High Court Government Pleader is permitted to file memo of appearance on behalf of the respondent 1-State and the respondent 2-Land Tribunal, Mangalore within four weeks.