Karnataka High Court

Bangalore Development Authority vs Rukkamma on 19 January, 2021

Author: B.V.Nagarathna And Uma

                             -1-


     IN THE HIGH COURT OF KARNATAKA, BENGALURU

         DATED THIS THE 19TH DAY OF JANUARY, 2021

                         PRESENT

        THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA

                             AND

            THE HON'BLE MRS. JUSTICE M.G. UMA

          WRIT APPEAL No.601/2020 (LA-BDA)

BETWEEN:

1.     BANGALORE DEVELOPMENT AUTHORITY
       T. CHOWDAIAH ROAD,
       KUMARA PARK WEST,
       BENGALURU - 560 020.
       REP. BY ITS COMMISSIONER.

2.     THE ADDITIONAL LAND ACQUISITION OFFICER
       BANGALORE DEVELOPMENT AUTHORITY,
       KUMARA PARK WEST
       BENGALURU - 560 020.               ... APPELLANTS

(BY SRI SACHIN       B.S.,   ADVOCATE   (THROUGH    VIDEO
CONFERENCE))

AND:

1.     RUKKAMMA
       W/O. LATE KRISHNAPPA
       AGED ABOUT 71 YEARS,

2.     VANAJASKSHI
       D/O. LATE KRISHNAPPA
       AGED ABOUT 54 YEARS,

3.     RAVINDRA .K
       S/O. LATE KRISHNAPPA
       AGED ABOUT 51 YEARS,

4.     JAYARAM .K
       S/O. LATE KRISHNAPPA
       AGED ABOUT 46 YEARS,
                               -2-


5.    SMT. ROOPA
      LATE JAGADISH .K
      AGED ABOUT 37 YEARS,

      ALL ARE R/AT NO.297,
      DODDAMANE KRISHNAPPA LAYOUT,
      NEAR ANJANEYA TEMPLE,
      ARAKERE BANNERUGHATTA ROAD,
      BANGALORE SOUTH,
      BANGALORE - 560 076.

6.    STATE OF KARNATAKA
      REPRESENTED BY ITS SECRETARY
      URBAN DEVELOPMENT
      DEPARTMENT - 560 001.                    ... RESPONDENTS

(BY MISS. TAHURA ANZAR, ADVOCATE FOR R-1;
    SRI FREUD RICHARDSON, ADVOCATE FOR R-2;
    SRI SAHARSH, ADVOCATE FOR C/R-3 TO R-5;
    SMT. VANI H., ADDL. GOVERNMENT ADVOCATE FOR R-6)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER OF THE LEARNED SINGLE JUDGE DATED 18/09/2019 IN
W.P.NO.35143-35147/2019 (LA-BDA).

      THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-

                        JUDGMENT

There is a delay of 157 days in filing the appeal.

2. We have heard learned counsel for the

appellant/Bangalore Development Authority ("BDA" for

short) on the application filed for condoning the delay in

filing the appeal.

3. Learned counsel for the appellant/BDA drew

our attention to the application seeking condonation of

delay of 157 days in filing the appeal. He submitted that

the delay has occurred due to bona fide and unintentional

reasons which are purely administrative in nature and

therefore, the said delay may be condoned.

4. In this regard, learned counsel for the

appellant drew our attention to paragraph Nos.3 and 4 of

the affidavit of Dr. Geetha N.R., Special Additional Land

Acquisition Officer of the BDA.

5. Learned counsel for the appellants submitted

that the impugned order dated 18/09/2019, passed in

W.P.No.35143-35147/2019 is incorrect as it has followed

the earlier judgment of this Court in W.P.No.21831/2016

disposed on 15/09/2017. That the said order pertains to

Sy.No.44 of Devarachikkanahalli Village, Begur Hobli,

Bangalore South Taluk. He submitted that the learned

single Judge ought not to have declared that the

acquisition has been abandoned and therefore, has lapsed

under Section 27 of the Bangalore Development Authority

Act, 1976 (hereinafter referred to as "the BDA Act" for the

sake of convenience).

6. Per contra, learned counsel for respondent

Nos.1 and 2, with reference to the statement of objections

filed, submitted that the Preliminary Notification in respect

of BTM Layout, 4th Stage is dated 06/08/1988 and the

Final Notification dated 03/11/1990. There is no

completion of the acquisition in respect of Sy.No.44,

measuring 37 guntas situated in Devarachikkanahalli

Village, which is the subject land. Hence, the writ petition

was filed under Section 27 of the BDA Act.

further submitted that learned single Judge has followed

the judgment in Smt. Huchamma vs. State of

Karnataka and others [W.P.No.21831/2016 disposed

on 15/09/2017] (Smt. Huchamma). The BDA belatedly

filed W.A.No.3884/2019 against the judgment passed in

Smt. Huchamma's case. That there was a delay of 743

days in filing the said appeal. The said appeal was

dismissed on the ground of delay and laches. That

subsequent to the impugned judgment, the respondents

have created third party interest and at a belated stage,

this appeal was filed on 18/11/2020 assailing the

impugned order dated 18/09/2019 and that the delay is

more than 157 days. Therefore, he submitted that the

appeal may be dismissed on the ground of delay as well on

the merits.

8. We have considered the submission of learned

counsel and perused the material on record. We have also

perused the affidavit of the Special Additional Land

Acquisition Officer, seeking condonation of delay of only

157 days in filing the appeal. We find that the impugned

order was passed on 18/09/2019 and the copy was made

available on 25/11/2019, but the appeal has been

preferred on 18/11/2020. Therefore, the delay in our view

is more than 157 days. The deponent has stated in

paragraph Nos.3 and 4 of the affidavit as under:

"3. I submit that, the impugned judgment passed by the learned single judge is on 18.9.2019 and subsequently after obtaining the certified copy of the judgment, discussion was held with the concerned officer and commissioner to prefer the writ appeal challenging the order of the learned single judge, and it was sent to the legal section for securing the legal opinion as to whether it is a fit case to prefer the writ appeal challenging the order of the learned single judge and subsequently after taking opinion from the concerned legal officer the file has been handed over to our panel advocate to prefer the appeal challenging the order of the learned single judge, in this background there is some delay in preferring the above appeal due to the administrative reasons.

4. The delay in preferring the appeal is unintentional but for the bonafide reasons stated above. I state that since sufficient cause has been made out for the delay in preferring the appeal, by the appellant this Hon'ble Court may take liberal approach and condone the delay. We have a good case on merits. If the accompanying application is not allowed and the appeal is not considered on merits, we will be put to irreparable injury, loss and hardship. On the other hand, no prejudice would be caused to the other side, if the delay is condoned and appeal is heard on merits."

On perusal of the said paragraphs, we note that the

said affidavit is bald and bereft of any detail. It is not

stated as to when the discussion was held with the

concerned officer and the Commissioner to prefer the writ

appeal challenging the impugned order, when it was sent

to the legal section to secure the legal opinion as to

whether it is a fit case for an appeal and when the opinion

was taken from the concerned officer and as to when the

file was handed over to the panel advocate to file the

appeal.

9. In this context, we rely on the following

judgments of the Hon'ble Supreme Court:

(a) We note that the Hon'ble Supreme Court in the

case of Post Master General & others vs. Living Media

India Ltd. & another [(2012) 3 SCC 563] has

deprecated the delay in filing the special leave petitions by

the State and Central Governments as well as their

instrumentalities and agencies. Paragraph Nos.27 to 30 of

the said judgment read as under:

"27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation

undoubtedly binds everybody, including the Government."

29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."

(b) Recently, the Hon'ble Supreme Court in the

State of Madhya Pradesh & others vs. Bherulal

[decided on 15/10/2020 in Special Leave Petition

(Civil) Diary No.9217/2020], has deprecated the

practice of filing appeals and special leave petitions

belatedly. The relevant portion of the said judgment read

as under:

"5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go- by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.

x x x

7. We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible."

In the aforesaid case, the delay in filing the special

leave petition was 663 days.

Municipal Corporation of Greater Mumbai & others

vs. Uday N.Murudkar [Special Leave Petition (Civil)

Diary No.9228/2020 disposed of on 15/10/2020]

and the State of Uttar Pradesh and another vs. Prem

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Chandra [Special Leave Petition (Civil) Diary

No.971/2020 disposed of on 27/11/2020].

(d) Further, on 18/12.2020, the Hon'ble Supreme

Court in the case of Deputy Conservator of Forests vs.

Timblo Irmaos Ltd. & others has observed as under:

"We have dealt with the issue of Government authorities in approaching Courts belatedly as if the Statute of Limitation does not exist for them. While referring to some reasons given for insufficiencies, we observed that the parties cannot keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government (Collector, Land Acquisition, Anantnag & Anr, (supra). This situation no more prevail and this position had been elucidated by the judgment of this Court in Office of the Chief Post Master General & Ors. vs. Living Media India Ltd. & Anr. (2012) 3 SCC

563."

10. As already noted, the delay in filing this appeal

is not just 157 days, but it is much more, which has not

been explained at all and the affidavit filed is totally

lacking any details and material particulars so as to explain

the delay in filing the appeal.

11. That apart, we also note that the learned

single Judge has followed the order of this Court in

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W.P.No.21831/2016 disposed of on 15/09/2017 and in the

writ appeal filed by the appellant/BDA as against the said

order, there was a delay of 743 days in filing the said writ