Even A Void Order Unless Certified By A Competent Body Or Court As Being Void, Would Continue To Be Operational: Karnataka High Court

A single judge bench of Justice Krishna S Dixit made the observation while rejecting a petition filed by the Diocesan Lord Bishop and Melvin D'souza, questioning the order of the Land Tribunal to the extent that it grants occupancy rights to the respondent in case of certain lands.

The petitioners had argued that the Land Tribunal order is void and therefore, the question of delay & latches for laying a challenge to the same does not arise. The court noted that the Land Tribunal granted the occupancy inter alia in respect of the subject lands vide order dated 21.10.1978. The Writ Petition has been filed on 13.10.2005 i.e, with a delay of about 27 years. The impugned order specifically mentions about the 'No Objection' of the 1st Petitioner for grant of occupancy.

Then it said, "Even a void order unless certified by the magistra dicta as being void, would continue to be operational."

Reliance was placed on State of Punjab & Others v. Gurdev Singh & Ashok Kumar, AIR 1992 SC 111, where the Supreme Court held that, "If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically...But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court."

Further rejecting the contention of the petitioners that they came to know of the order passed by the tribunal only after 2nd Respondent Jerome Rebello threatened the 2nd Petitioner with the impugned order, the bench said, "The extent of land in actual cultivation of the tenants has been ascertained after the survey. A perusal of the original LCR shows that the 1st Petitioner was issued notice dated 20.09.1978 and only thereafter he notified his consent to the claim of the tenants. In fact, Form 10 itself was issued on 21.12.1998."

It held, "It is not that the 1st Petitioner is a peasant, an agriculturist or a labourer; he is a qualified Bishop who will have wide exposure to the outer world. Therefore, the contention of the Petitioners that they did not have notice of the LT proceedings cannot be accepted, when delay runs into decades and third party rights have been created."

Rejecting the contention of the petitioners that the requirement of boundaries of the tenanted land needs being specified, the bench said, "The invocation of Rule contemplates an ideal situation where there is some dispute about the identity of the lands in respect of which occupancy is claimed. When there is no dispute at all, there is no scope for invocation of these Rulings."

It added, "Even otherwise, this argued norm pales into insignificance once the landlord signified his consent to the claim for occupancy, in a wholesale way. It is not that the 1st Petitioner being the landlord had objected to the claim and participated in the LT proceedings. A proposition emerging from the Rulings cannot be mechanically applied regardless of factual difference of the case at hands."

The final contention of the petitioners that the subject lands are punja lands and therefore, no occupancy could have been granted, the same being non-agricultural, was rejected by the court saying,

"True it is that in Dakshina Kannada region, ordinarily, the punja lands are not treated as agricultural lands. However, it is not that they cannot be brought under cultivation."

Referring to coordinate bench judgment in the case of Subhakar v. Land Tribunal, Karkala Taluk, Karkala, (1999) 4 KLJ 524, the court observed, "There is a lot of support for the view that even the punja lands can be brought under cultivation and therefore, in such a case, occupancy can be accorded u/s 48A of the Karnataka Land Reforms Act, 1961."

Allowing the memo filed by the respondents who offered to give 23 cents of land where the 2nd Petitioner has constructed the house during the pendency of the case in order to put an end to the litigation, the bench said, "Setting aside the LT order at this stage would cause comparatively more injustice to the private Respondents who have bought the land after employing their prudence, whereas this prudence comparatively lacks qua the Petitioners."

It opined,

"The Constitutional Court exercising equity jurisdiction has to take into account a host of factors in doing justice by striking a balance between competing equities. The private Respondents have stood tall and wise in giving up part of their claim. The Writ Courts have to operate a theory of justice that can serve as the basis of practical reasoning and that would invariably include the ways of judging how to reduce injustice and advance justice, rather than aiming only at the characterization of perfectly just scenarios. A demand for perfect justice if conceded to, would breed injustice, inasmuch as conflicting considerations cannot be fully resolved in any society."

Thus while dismissing the petition the bench said, "A part of the lands now given up by the private Respondents would enure to the benefit of 2nd Petitioner so that he can save his building and the area appurtenant thereto, which in all is confined to 23 cents, as stated in the Memo. In the event, if the Petitioners being unsatisfied with this judgment, lay a challenge thereto, it is open to the private Respondents to withdraw their Memo unconditionally inasmuch as the offer emanated gracefully and gratuitously."

Case Title: THE LORD BISHOP & ANR v. THE LAND TRIBUNAL & OTHERS 

Case No: WRIT PETITION NO.1762 OF 2005

Citation; 2022 LiveLaw (Kar) 491

Date of Order: 29TH DAY OF NOVEMBER, 2022

Appearance: CYRIL PRASAD PAIS, ADVOCATE FOR P1; PANDIKAI ISHWARA BHAT, ADVOATE FOR P2; V.SESHU, HCGP, FOR R1; H.N.MANJUNATH PRASAD, FOR R2(A) TO R2(J) & R3 TO R10; P.KARUNAKAR FOR R2(E) (F) & (G).