Smt. Lakshmamma vs The State Of Karnataka
2021 Latest Caselaw 7145 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 23RD DAY OF DECEMBER 2021

                      BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

     WRIT PETITION NO.16813 OF 2018 (SC-ST)

BETWEEN:

SMT. LAKSHMAMMA
W/O A. RAMANJANAPPA
AGED ABOUT 67 YEARS,
RESIDING AT BOODIGERE CROSS,
HOSAKOTE TALUK
BANGALORE RURAL DISTRICT - 562 114.
                                        ...PETITIONER

(BY SRI. B.N. SURESH BABU, ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      REPRESENTED BY PRINCIPAL SECRETARY
      REVENUE DEPARTMENT
      VIKASA SOUDHA
      BENGALURU - 560 001.

2.    THE DEPUTY COMMISSIONER
      KOALR, KOLAR DISTRICT -563 101.

3.    THE ASSISTANT COMMISSIONER
      KOLAR SUB DIVISION,
      KOLAR-563 101.
                         2



4.   MUNIYAMMA
     SINCE DECEASED HER LEGAL REPRESENTATIVE
     SRI R. THIMMARAYAPPA
     AGED ABOUT 57 YEARS
     S/O RAMAIAH, NIDARAMANGALA VILLAGE,
     TEKAL HOBLI, MALUR TALUK
     KOLAR DISTRICT, KOLAR - 563 101.

5.   FIROZ KHAN
     S/O MOHAMMAD ABBAS KHAN
     AGED ABOUT 55 YEARS
     KONDASHETTIHALLI, TEKAL HOBLI,
     MALUR TALUK, KOLAR DISTRICT
     KOLAR - 563 101.

6.   SMT. JAYALAKSHMAMMA
     D/O NAGIREDDY
     AGED ABOUT 45 YEARS
     MALUR TOWN, MALUR TALUK
     KOLAR DISTRICT, KOLAR-563 101.
                                      ....RESPONDENTS

(BY SRI. M. SANDESH KUMAR, HCGP FOR R1-R3
    SRI. SUNI S RAO, ADVOCATE FOR
    SRI. T. SHESHAGIRI RAO, ADVOCATE FOR R-4
    R-4 & R-5 SERVICE OF NOTICE DISPENSED WITH
    VIDE ORDER DATED 07.3.2019)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 28.02.2018 IN RA.SC.ST
5/2015-16 VIDE ANNEXURE-A PASSED BY THE SECOND
RESPONDENT; DECLARE THAT THE APPEAL OF THE
FOURTH RESPONDENT WAS NOT MAINTAINABLE AS IT
WAS FILED AFTER LAPSE OF 25 YEARS AND THE SAME IS
BARRED BY LAW.

     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 07.12.2021, COMING ON FOR
                             3



PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:

                       ORDER

The petitioner being aggrieved by the order

dated 28.2.2018 passed by respondent No.2 vide

Annexure-A has filed this writ petition.

2. Brief facts leading rise to filing of this petition

are as under:

acres situated at Agara Village originally belonged to

one Muniamma under grant order dated 25.11.1960.

The said land was sold by Smt. Muniamma in favour

of respondent No.5 under registered sale deed dated

22.6.1966. Respondent No.5 in turn had sold the said

land in favour respondent No.6 under registered sale

deed dated 5.9.1985. Respondent No.6 sold the land

in favour of the petitioner on 5.3.1995.

2.1. On the strength of the registered sale deed

dated 5.3.1995, the land was transferred in the name

of the petitioner and the petitioner is in possession of

the land in question. Respondent No.4 filed an

application under Section 5 of the PTCL Act in the year

1985 before respondent No.3-Assistant Commissioner.

Respondent No.3 rejected the application filed by

respondent No.4 vide order dated 3.9.1985. The legal

representative of respondent No.4 being aggrieved by

the order passed by respondent No.3 preferred an

appeal before respondent No.2. Respondent No.2

allowed the appeal vide order dated 20.8.2014.

2.2. The petitioner being aggrieved by the order

passed by respondent No.2 preferred a writ petition in

W.P.No.50242/2014. This Court allowed the writ

petition vide order dated 3.7.2015 and remitted the

matter to respondent No.2 and directed respondent

No.2 to examine whether the matter can be examined

after such a delay. After remand, respondent No.2 has

passed the impugned order condoning the delay of

more than 26 years in filing the appeal. Being

aggrieved by the aforesaid order, this writ petition is

filed.

3. Heard learned counsel for petitioner, learned

counsel for respondent No.4 and the learned HCGP for

respondents No.1 to 3.

4. Learned counsel for the petitioner submits

that respondent No.2 has committed an error in

condoning the delay of more than 26 years. He

further submits that respondent No.4 has not shown

sufficient cause for condoning the delay. He further

submits that the delay defeats equity. Hence, on

these grounds he prays to allow the writ petition.

5. Per contra, learned counsel for the

respondents No.4 submits that respondent No.2 was

justified in passing the impugned order. He further

submits that respondent No.3 has not communicated

the order. Hence there is a delay of 26 years in filing

the appeal. He further submits that respondent No.2

was justified in passing the impugned order and

submits that the impugned order does not call for any

interference by this Court. Hence, prayed to dismiss

the writ petition.

6. Perused the records and considered the

submissions made by learned counsel for the parties.

7. At the outset it is noticed that by the

impugned order, respondent No.2 has condoned the

delay of more than 26 years in preferring the appeal

by respondent No.4. While condoning the delay

respondent No.2 has observed that there is no record

to show that the order passed by respondent No.3

was communicated to respondent No.4. The

respondent No.4 has not taken such contention in the

affidavit enclosed to the application for condonation of

delay. Without there being any averments, the

respondent No.2 has committed an error in recording

the said finding which is contrary to the records.

8. I have gone through the affidavit filed by

respondent No.4. The averments made in the

affidavit for condonation of delay are that the original

grantee died and the legal representative i.e.

respondent No.4 herein was a minor at that time and

therefore, has not filed the appeal against the order

passed by respondent No.3 within time. From the

perusal of the affidavit filed by respondent No.4, the

age of respondent No.4 is shown as 45 years. The

respondent No.4 has not assigned any sufficient cause

for filing the appeal after more than 26 years before

respondent No.2. Respondent No.4 was aged about

45 years at the time of filing the appeal before

respondent No.2. If at all respondent No.4 was a

minor at the time of passing an order by respondent

No.3, respondent No.4 ought to have preferred an

appeal within three years from the date of attaining

the age of majority as per Article 60 of the Limitation

Act, 1963. Respondent No.4 has filed appeal before

respondent No.2 after a lapse of more than 26 years

from the date of attaining the age of majority. As

discussed above, respondent No.4 has not shown any

sufficient cause in filing the appeal at a belated stage.

The courts while considering an application for

condonation of delay, must exercise the discretion

judiciously. In the instant case, respondent No.2 has

not exercised the discretion judiciously while passing

the impugned order.

9. In the recent judgment of the Hon'ble

Apex Court in Majji Sannemma @ Sanyasi Rao v.

Reddy Sridevi and Ors (Civil Appeal No.7696/2021

disposed of 16.12.2021), it is held that the Court

cannot enquire into belated and stale claims on the

ground of equity. Delay defeats equity. The courts

help those who are vigilant and "do not slumber over

their rights".

10. The said judgment squarely applies to the

present case in hand. Thus, the period of delay of 26

years has not at all been explained. Respondent No.2

has committed an error in passing the impugned

order.

11. In view of the above the following order is

passed :

ORDER

i) The writ petition is allowed;

ii) The impugned order dated 28.2.2018 passed by respondent No.2 vide Annexure-A is hereby quashed and set aside and consequently the appeal No. RA.SC.ST.5/2015-16 stands dismissed on the ground of delay and latches.

SD/-

JUDGE rs