Karnataka High Court

Thirumalaiah S/O Dasaiah vs The Deputy Commissioner on 13 December, 2021

Bench: Ashok S.Kinagi

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 13TH DAY OF DECEMBER 2021

                      BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

     WRIT PETITION NO.35549 OF 2010 (SC-ST)

BETWEEN:

1.     THIRUMALAIAH
       S/O DASAIAH
       SINCE DECEASED BY HIS LEGAL REPRESENTATIVES

1(A) KALYANAMMA
     W/O LATE THIRUMALAIAH
     AGED ABOUT 63 YEARS,

1(B) MUDALAIAH
     S/O LATE THIRUMALAIAH
     AGED ABOUT 47 YEARS,

1(C) NANJUNDAIAH
     S/O LATE THIRUMALAIAH
     AGED ABOUT 38 YEARS,

1(D) PUTTARAJU P T
     S/O LATE THIRUMALAIAH
     AGED ABOUT 36 YEARS

       ALL ARE R/AT POTHANAHALLI VILLAGE AGRAHARADA
       KUNBENAHALLI POST, DANDIGANAHALLI HOBLI,
       CHANNARAYAPATNA TALUK
       HASSAN DSITRICT.
                           2




2.     LAKSHMAMMA
       W/O LATE THIMMAIAH
       AGED ABOUT 60 YEARS

3.     JAGADEESHA
       S/O LATE THIMMAIAH
       AGED ABOUT 33 YEARS

     PETITIONERS 2 AND 3 ARE
     R/AT POTHANAHALLI VILLAGE
     AGARAHARADA KUNBENAHALLI POST
     DANDIGANAHALLI HOBLI
     CHANNARAYAPATNA TALUK
     HASSAN DISTRICT - 573 216.
                                  ...PETITIONERS
(BY SRI. H MOHAN KUMAR, ADVOCATE)

AND:

1.     THE DEPUTY COMMISSIONER
       HASSAN DISTRICT
       HASSAN.

2.     THE ASSISTANT COMMISSIONER
       HASSAN SUB DIVISION,
       HASSAN.

3.     CHALUVEGOWDA
       S/O CHANNEGOWDA
       SINCE DECEASED BY HIS LRS.

3(A) K C RAMESH
     S/O LATE CHALUVEGOWDA
     AGED ABOUT 40 YEARS

3(B) K C MARIGOWDA @ VASU
     S/O LATE CHALUVEGOWDA
     AGED ABOUT 35 YEARS
                          3




3(C) K C PRASANNA KUMAR
     S/O LATE CHALUVEGOWDA
     AGED ABOUT 30 YEARS


      RESPONDENTS 3 (A) TO (C) ARE
      R/AT AGRAHARADA
      KUMBENAHALLY VILLAGE AND POST,
      DANDIGANAHALLY HOBLI,
      CHANNARAYAPATNA TALUK,
      HASSAN DISTRICT.
                                    ...RESPONDENTS
(BY SRI. M. SANDESH KUMAR, HCGP FOR R-1 AND R-2
    SRI. B.S. RAGHUPRASAD, ADVOCATE FOR R3(A)-(C)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER IN No.R.MIS.20/91-92 & R.MIS.19/91-
92 DATED 18.5.1993 AND CORRIGENDUM ISSUED ON
25TH MAY 1993 PASSED BY THE R-1, VIDE ANNEXURE-H
AND ETC.


     THIS WRIT PETITION COMING ON FOR DISPOSAL
THIS DAY, THE COURT MADE THE FOLLOWING:

                      ORDER

The petitioners being aggrieved by the order

dated 18.05.1993 and corrigendum dated 25.05.1993

passed by respondent No.1, vide Annexure-H has filed

this writ petition.

2. Brief facts leading rise to filing of this petition

are as under:

That the petitioner No.1-Thirumallaiah and

husband of the petitioner No.2-Thimmaiah are

bothers. They were holding 3 acres 35 guntas of land

in Sy.No.39/1 situated at Thegigere Village,

Dandiganahalli Hobli, Channarayapatna Taluk and 4

acres 39 guntas of land in Sy.Nos.11/1 and 11/2 of

Pothanahalli Village, Dandiganahalli Hobli,

Channarayapatna Taluk are ancestral properties.

Petitioner No.1 died on 21.02.1994 and his legal

representatives were brought on record. Petitioner

No.2 and petitioner No.3 are the wife and son of

Thimmaiah respectively. Thimmaiah died leaving

behind petitioners No.2 and 3 as his heirs.

2.2. Thirumallaiah and Thimmaiah are the sons

of one Dasaiah. They were working as bonded

laborers under respondent No.3 for many years.

Respondent No.3 had purchased the land under a

registered sale deed dated 16.04.1959. The said

lands were granted in favour of Thirumallaiah and

Thimmaiah measuring 4 acres each in Sy.No.35 of

Chitananahosahalli Village, Channarayanapatna Taluk

and Saguvali Chits came to be issued to them on

04.02.1963. Respondent No.3 got his land exchanged

in Sy.Nos.11/1 and 11/2 of Pothanahalli Village, which

was purchased by him from the petitioners under a

registered sale deed dated 16.04.1959 (Annexure-B).

He exchanged with the land in Sy.No.35 of

Chithanahosahalli Village, Dandiganahalli Hobli,

Channarayapatna Taluk to an extent of 8 acres, which

were granted to Thirumallaiah and Thimmaiah as per

Annexures C and D, under the Exchange Deed dated

13.08.1984 (Annexure-E).

2.3. Thirumallaiah and Thimmaiah belonged to

Scheduled Caste community. During their lifetime,

both of them made an application under Section 5 of

the Karnataka Scheduled Castes and Scheduled Tribes

(Prohibition of Transfer of Certain lands) Act 1978 (for

short 'the PTCL Act') before respondent No.2 alleging

that the Exchange Deed dated 13.8.1984

(Annexure-E) is in violation of Section 4 of the PTCL

Act. Respondent No.2 has passed an order vide

Annexure-F allowing the application and declaring the

Exchange Deed as null and void and ordered for

restoration of land in question in favor of the

petitioners. Respondent No.3 being aggrieved by the

order passed by respondent No.2 preferred an appeal

before respondent No.1-Deputy Commissioner.

Respondent No.1 allowed the appeal and set aside the

order passed by respondent No.2. The petitioners

being aggrieved by the order passed by respondent

No.1 have filed this writ petition.

3. Heard learned counsel for the petitioners,

learned HCGP for respondents No.1 and 2 and learned

counsel for respondents No.3 (a) to (c).

4. Learned counsel for the petitioners submits

that the lands were granted in favour of Thirumallaiah

and Thimmaiah, who belonged to Scheduled Caste

Category. He further submits that the Exchange Deed

is in violation of provision of Section 4 of the PTCL Act

and that respondent No.2 was justified in allowing the

application filed by the petitioners. He further submits

that respondent No.1 has committed an error in

passing the impugned order. Hence, on these

grounds, he prays to allow the writ petition.

5. Per contra, learned counsel for the

respondent No.3 (a to c) submits that respondent

No.1 has passed an order on 18.05.1993 and

Corrigendum was issued on 25.05.1993. He further

submits that the writ petition was filed on 12.11.2010

i.e., after a lapse of 17 years from the date of disposal

of the appeal. He further submits that the petitioners

have not explained the delay in filing the writ petition

at a belated stage i.e., after a lapse of 17 years. He

further submits that on the ground of delay and

latches, the writ petition is liable to be dismissed.

Hence, on these grounds, he prays to allow the writ

petition.

6. Heard and perused the records and

considered the submissions made by learned counsel

for the parties.

7. The petitioners have filed an application

under Section 5 of the PTCL Act alleging that the

Exchange Deed is in violation of the provisions of PTCL

Act. Respondent No.2 has passed an order by

allowing the application filed by the petitioners.

Respondent No.3 being aggrieved by the order passed

by respondent No.2 preferred an appeal before

respondent No.1. Respondent No.1 allowed the

application filed by respondent No.3 vide order dated

18.05.1993 and issued corrigendum dated

25.05.1993. The writ petition came to be filed on

12.11.2010. This writ petition is filed after lapse of

more than 17 years from the date of passing the order

by respondent No.1. The petitioners have not

explained the reasons for filing the writ petition at a

belated stage.

The High Court while exercising jurisdiction

under Article 226 of the Constitution of India, is an

instance of exercise of jurisdiction in equity and before

considering the writ petition on merits, the delay and

laches would have to be adverted to, while exercising

the powers under the equity jurisdiction having regard

to the salutary doctrine. I am of the view that in the

absence of there being any explanation whatsoever

for belated filing of this writ petition, and there being

no good reason explaining the delay, this writ petition

is liable to be dismissed on the ground of delay and

laches. In this context, the Hon'ble Apex Court on the

issue regarding delay and as to how a Court of equity

exercising jurisdiction under Article 226 of the

Constitution of India cannot extend its hand to such a

person who approaches the Court after several years

can be relied upon, in the case of STATE OF ORISSA VS.

MAMTA MOHANTY, reported in 2011 AIR SCW 1332, has

held that consideration of an application where delay

and laches could be attributed against a person who

approaches in a writ petition is discussed by stating

that though the Limitation Act, 1963 does not apply to

the writ jurisdiction, however doctrine of limitation

being based on public policy, the principles enshrined

therein are applicable and the writ petition could be

dismissed at the initial stage on the ground of delay

and laches. The Hon'ble Apex Court in the case of

SHANKARA CO-OP. HOUSING SOCIETY LTD., VS. M.PRABHAKAR

& ORS., reported in 2011 AIR SCW 3033, at para-53

has given a relevant consideration in determining

whether delay and laches in approaching the writ

petition under Article 226 of the Constitution of India,

which reads as under:

"53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ Court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless

there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsehwere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay."

8. Similarly, the Hon'ble Apex Court in the case

of SWARNA LATHA & ORS. VS. STATE OF HARYANA & ORS.,

reported in 2010 (4) SCC 532, has refused to quash

the acquisition proceedings on the ground of delay as

the litigants who dare to abuse the process of the

Court in disregard of the law of limitation, delay and

laches should not be encouraged. The Hon'ble Apex

Court in the case of TAMILNADU HOUSING BOARD, CHENNAI

VS. N.MEIYAPPAN & ORS., reported in 2010 AIR SCW

7130, the acquisition case was challenged 10 years

after the notifications were issued. The Hon'ble Apex

Court held that the High Courts should not have