Judgment:
ORDER
P. Vishwanatha Shetty, J.
1. Though this petition is posted for preliminary hearing in 'B' group, with the consent of the Learned Counsel for the petitioners and the Learned Government Pleader appearing for Respondents-1 and 2, it is taken up for final hearing and disposed of by this order.
2. The petitioners in this petition are the legal heirs of one late Lakshmana Gowda.
3. In this petition, the petitioners have prayed for quashing the order dated 9th February, 1988, passed by the 1st respondent, confirming the order dated 27th May, 1987, passed by the 2nd respondent in exercise of the powers conferred on him under Section 5(1) of the Karnataka Scheduled Castes and Scheduled Tribes(Prohibition of Transfer of Certain Lands) Act, 1978, (hereinafter referred to as 'the Act'), declaring the sale of land measuring 5 acres in Sy.No. 283, old No. 174, situated at Makodu village, Avathi Hobli, Chikmagalur Taluk, as null and void and further directing that the possession of the said land should be handed over to the 3rd respondent. Copies of the order dated 9th February, 1988 and 27th May, 1987, have been produced as Annexure-A and B, respectively.
4. Sri A.G. Shivanna, Learned Counsel appearing for the petitioners, submitted that the orders impugned are illegal and liable to be quashed by this Court, as the said orders came to be passed in disregard to the principles of natural justice and also in violation of Section 5 of the Act. He further submitted that the 1st petitioner is the wife, Petitioners-2 to 4 are children and the 4th Respondent is the brother of one Lakshmana Gowda. According to the Learned Counsel, the land in question was though purchased in the name of Ramanna (i.e. the 4th respondent) by means of registered Sale Deed dated 21st July, 1966; subsequently the said land was released in favour of the said Lakshmana Gowda by means of registered Release Deed dated 6th May, 1980; and therefore, the said Lakshmana Gowda having become the owner of the land in question should have been heard by the 2nd respondent, before passing the order Annexure-B. He further submitted that pursuant to the Release Deed dated 6th May 1980, executed by the 4th respondent in favour of Lakshmana Gowda, the name of the said Lakshmana Gowda came to be entered in the revenue records; and further the 4th respondent, who was notified of the proceedings by the 2nd respondent had filed Statement of Objections before the 2nd respondent bringing to his notice that the said Lakshmana Gowda had acquired right, title and interest in respect of the land in question by virtue of the Release Deed, referred to above, and under these circumstances, the 2nd respondent has seriously erred in law in proceeding to pass the order Annexure-B without hearing the said Lakshmana Gowda.
5. Sri M. Siddagangaiah, Learned Government Pleader, supported the orders impugned.
6. No doubt, it is true that the registered Release Deed dated 6th May, 1980, came to be executed by the 4th respondent conveying his interest in the said land in favour of his brother aforesaid Lakshmana Gowda, and the same was brought to the notice of the 2nd respondent by means of Statement of Objections filed by the 4th respondent. Then the question is as to whether the orders impugned are liable to be quashed solely on the ground that the said Lakshmana Gowda was not heard before passing the orders impugned. My answer is in the negative. Having regard to the facts and circumstances of this case, I am of the view that this petition is liable to be dismissed on three grounds: Firstly, on the ground that the said Lakshmana Gowda, who was aware of the proceedings pending before the 2nd respondent having taken a chance of getting his rights in respect of the land in question adjudicated upon through his brother, the 4th respondent herein, after his death, the petitioners who claim interest to the land in question through him cannot now be permitted to challenge the orders impugned. The proceeding of the 2nd respondent shows that the 4th respondent was examined before the 2nd respondent. The relevant portion of the statement made by the 4th respondent, which has been referred to by the 2nd respondent in the course of the order Annexure-B reads thus:
Therefore, it is clear that the 4th respondent notwithstanding the Release Deed executed by him in favour of fate Lakshmana Gowda claimed right, title and interest in respect of the Land in question and seriously contested the proceedings before the 2nd respondent. Further, aggrieved by the order Annexure-B, the 4th respondent also filed an appeal before the 1st respondent. The appeal filed by the 4th respondent came to be dismissed by the 1st respondent on 9th February, 1988. From the order Annexure-A, passed by the 1st respondent, it is clear that the 4th respondent had engaged a Counsel before the appellate authority and effectively challenged the order Annexure-B, passed by the 2nd respondent. The materials on record clearly demonstrate that the 4th respondent has asserted his rights in respect of the land in question and effectively participated in the proceedings before Respondents-1 and 2. Further, admittedly, the land in question was purchased by the 4th respondent by means of registered Sale Deed dated 21st July, 1966, and the Release Deed relied upon by the Learned Counsel for the petitioner came to be executed only on 6th May, 1980, i.e. after coming into force of the Act. Under these circumstances, when the 4th respondent had asserted the right, title and interest in respect of the land In question and when the said Lakshmana Gowda did not challenge the orders impugned during his life time, it is difficult to believe the claim made by the petitioners that the said Lakshmana Gowda had acquired title in respect of the land in question by virtue of the Release Deed relief upon by the petitioners. Even assuming that the said Lakshmana Gowda had acquired title in respect of the land in question by means of Release Deed relied upon by the petitioners, it is not possible to believe the belated say of the petitioners that the said Lakshmana Gowda had no knowledge of the proceedings pending either before the 2nd respondent or before the 3rd respondent. It is not the case of the petitioners that there was any difference of opinion between the 4th respondent and the said Lakshmana Gowda. Therefore, the only inference that could be drawn under the facts and circumstances of the case is that either the said Lakshmana Gowda did not acquire any right, title and interest in respect of the land in question by virtue of the Release Deed relied upon by the petitioners, or the said Lakshmana Gowda effectively fought-out the litigation through his brother, the 4th respondent herein. Both Respondents-1 and 2 have concurrently found that the land in question came to be sold in violation of the terms of the grant. I do not find any infirmity in the said orders. The basic principle of 'audio alteram partem' is to ensure that no person should be denied of his right without giving an opportunity to him. Therefore, when a person makes a complaint that he has been denied of an opportunity, it is for the Court having regard to the facts and circumstances of 'the case to examine whether the person who made grievance of violation of natural justice has been deprived of an opportunity of being heard. The conduct of the parties, the nature of the injury caused, the delay caused in challenging the orders will acquire significance when the party complains of the violation of principles of natural justice invoking the jurisdiction of this Court either under Article 226 or 227 of the Constitution of India. In the instant case, as observed earlier, the 4th respondent had effectively participated in the proceedings before Respondents-1 and 2. Therefore, I am unable to accept the contention that the orders impugned came to be passed either in violation of principles of natural justice or Section 5 of the Act. From the facts of the case, I have no hesitation to come to the conclusion that the Lakshmana Gowda, who was fully aware of pendency of the proceedings before Respondents-1 and 2, choose to contest the claim of the 3rd respondent through his brother, the 4th respondent, before Respondents-land 2. 1 am of the view that the principle of natural justice is intended to be applied to project the rights of the persons, whose rights are sought to be taken away without giving an opportunity of being heard and therefore, the said principle should not be stretched too far to assist a person who was fully aware of pendency of the proceedings before the 2nd respondent and also before the 1st respondent and fought the litigation through the 4th respondent. Section 4(1) of the Act provides that notwithstanding anything in any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of the Act, in contravention of the terms of the grant of such land or the law providing for such grant of Sub-section (2) of Section 4 of the Act shall be null and void and no right, title or interest in such land shall be conveyed nor be deemed ever to have conveyed by such transfer. The 2nd respondent on the basis of the enquiry held by him after recording the evidence of Respondents-3 and 4 has passed order Annexure-B. The finding recorded by the 2nd respondent has been confirmed in appeal by the 1st respondent. Therefore, except for the technical objection raised that on the date of initiation of the proceedings, the said Lakshmana Gowda had acquired the right, title and interest in respect of the land in question, by virtue of the Release Deed relied upon by the petitioners, the petitioners have failed to show as to how any prejudice or injury has been caused either to the said Lakshmana Gowda or the petitioners. Further, the said Lakshmana Gowda did not challenge the orders impugned during his life time. This is an important circumstance this Court will have to take into account while considering the contentions of the petitioners. For all these reasons, I am unable to accept the contention of the petitioners that the orders impugned came to be passed in disregard to the principles of natural justice.
7. Secondly, this petition is liable to be dismissed on the ground of delay and latches on the part of the petitioners. Admittedly, the order Annexure-B was passed by the 2nd respondent on 27th May, 1987, and the order Annexure-A was passed by the 1st respondent on 9th February, 1988. The said Lakshamana Gowda had expired on 19th September 1990. In paragraph-9 of the petition, the only explanation offered by the petitioners for the delay in approaching this Court is that the petitioners came to knew about the orders impugned when the 3rd respondent tried to interfere with their possession in respect of the land in question during the first week of December, 1992, and according to the petitioners, neither the said Lakshmana Gowda was aware of the proceedings pending either before the 1st respondent or the 2nd respondent till his death nor the petitioners till the first week of December, 1992. As stated earlier, it is difficult to believe this version of the petitioners. Further, it is not their case that there was any serious difference of opinion between the 4th respondent, who had through-cut participated in the proceedings and the petitioners and the said Lakshmana Gowda. It is not known on what basis the petitioners have asserted after the death of Lakshmana Gowda that he was not aware of the proceedings pending before Respondents-1 and 2. Therefore, as stated earlier, this petition is also liable to be dismissed solely on the ground of delay and latches on the part of the petitioners in approaching this Court.
8. Lastly, this petition is also liable to be dismissed on the ground that in a matter like this while considering the claim made by the petitioners, this Court cannot be oblivious of the fact that the Act came into force on 1st January, 1979, and it intended to give relief to the members of Scheduled Castes and Scheduled Tribes, who are recognised as the most backward section of the society, and if at this stage having regard to the facts and circumstances of the case the orders impugned are to be quashed at the instance of the petitioners on the sole ground that the said Lakshmana Gowda was not heard before passing the orders impugned, it would result in great injustice and injury to the 3rd respondent. The alleged procedural irregularity or the violation of principles of natural justice complained of, in my opinion, has not resulted in any injustice either to the said Lakshmana Gowda or to the petitioners. Therefore, this is not a fit case for interference by this Court in exercise of its power either under Article' 226 or 227 of the Constitution of India.
9. For the reasons stated above, this petition is liable to be dismissed.
10. However, at this stage, Sri A.G. Shivanna, submitted that the petitioners may be given atleast two years' time to hand over possession of the land in question. He further submitted that he has prayed for time without prejudice to the right of the petitioners to file an appeal against this order, if they so desire.
11. Having regard to the facts and circumstances of the case, the petitioners are granted one year's time to hand over possession of the land in question to the 3rd respondent, subject to the condition that they shall file an undertaking by means of an affidavit before this Court within six weeks from to-day, undertaking to voluntarily hand over possession of the land in question to the 3rd respondent on or before 3rd September, 1997. If the petitioners fail to file such an affidavit within six weeks from to-day before this Court, the 2nd respondent is at liberty to enforce the orders impugned after expiry of six weeks from to-day.
12. Sri M. Siddagangaiah, learned Government Pleader, is permitted to file his memo of appearance within four weeks from today.