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2009 DIGILAW 35 (KAR)

Marappa v. State Of Karnataka

2009-01-15

N.K.PATIL

body2009
Judgment : The petitioners, assailing the correctness of the impugned order dated 11-6-2008 passed by the First Additional District Judge, Bangalore, on I.A. No. I in M.A. No. 28 of 2005 wide Annexure-A and to allow this writ petition by allowing the I.A. No. I filed in M.A. No. 28 of 2005, by calling for record from the file of I Additional District Judge, Bangalore Rural District, Bangalore, have presented this writ petition. 2. The brief facts of the case are that: petitioners assailing the correctness of the order dated 10th June, 1982 passed by the Tahsildar, Anekal have filed an appeal before the learned First Additional District Judge, Bangalore Rural District, Bangalore, in M.A. No. 28 of 2005 and along with the said appeal, they have filed I.A. No. I under Section 5 of the Limitation Act, 1963, for condoning the delay in filing the said appeal. The said application had come up for consideration before the Appellate Court on 11th June, 2008. The Appellate Court, after hearing both sides and after considering the material available on record, specifically, the statement made by the petitioners in the affidavit filed along with the application, has rejected the said application. Being aggrieved by the order impugned passed by the Appellate Court, as referred above, these petitioners felt necessitated to present this writ petition, seeking appropriate reliefs, as stated supra. 3. I have heard learned Counsel appearing for petitioners and learned Counsel appearing for third respondent. 4. Learned Counsel appearing for petitioners Sri Prakash T. Hebbar, at the outset, submitted that, the order passed by the Tahsildar, Anekal cannot be sustained and it is liable to be set aside at threshold, on the ground that, the said order has been passed against a dead person, that too, the said order has not been communicated to these petitioners, who are claiming their rights through late Smt. Rajamma, who was the wife of their elder uncle and who has filed an application for regrant of inam property before the Tahsildar, Anekal. Further, learned Counsel appearing for petitioners submitted that, the Tahsildar, Anekal has passed said order, without conducting enquiry and without hearing the parties. Further, learned Counsel appearing for petitioners submitted that, the Tahsildar, Anekal has passed said order, without conducting enquiry and without hearing the parties. The petitioners came to know about the order impugned passed by the Tahsildar, Anekal, only on 20th February, 2005 and thereafter, they have applied for the certified copy of the said order and after obtaining the certified copy, they have filed the said appeal before the Appellate Court and the said delay is not intentional and it is bona fide one. Further, learned Counsel appearing for petitioners has submitted that, the Appellate Court, ought not to have rejected the said application filed by the petitioners for condoning the delay in filing the said appeal, on the ground of delay and laches and without following the well-settled law laid down by the Apex Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others AIR 1987 SC 1353 : (1987) 2 SCC 107 , wherein the Division Bench of the Apex Court has held that: "Test of “Sufficient Cause” words "sufficient cause” should be construed liberally and should be used to subserve ends of justice”. Therefore, he submitted that, the order impugned is liable to be quashed. 5. Per contra, learned Counsel appearing for contesting respondent 3, inter alia, contended and substantiated the order passed by the Appellate Court as the same is just and reasonable. To substantiate his submission has pointed out the stand taken by the third respondent in the statement of objections filed by him to I.A. No. I filed by petitioners under Section 5 of the Limitation Act for condoning the delay in filing the appeal, wherein, he has specifically stated that, Smt. Rajamma is still alive and staying in Jigani doing vegetable business and to substantiate the said statement he has produced copy of the voters list and certificate issued by the Jigani Panchayat, at para 4 of the objections, which is produced at ink page No. 98. Therefore, he submitted that, petitioners have not approached Appellate Court or this Court with clean hands and hence, the instant writ petition is liable to be rejected at threshold. However, learned Counsel appearing for petitioners submitted that, petitioners have produced the death certificate of Smt. Rajamma issued by the concerned authority. 6. Therefore, he submitted that, petitioners have not approached Appellate Court or this Court with clean hands and hence, the instant writ petition is liable to be rejected at threshold. However, learned Counsel appearing for petitioners submitted that, petitioners have produced the death certificate of Smt. Rajamma issued by the concerned authority. 6. After hearing the learned Counsel appearing for both the parties and after careful perusal of the material available on record, including the order impugned, it is not in dispute that, there is an inordinate delay of 23 years in filing the said appeal before the Appellate Court and along with the said appeal, the petitioners have filed an application under Section 5 of the Limitation Act, for condoning the delay of 23 years in filing the said appeal along with the affidavit. The petitioners have not whispered a single word as to how many days there is a delay in filing the said appeal, except making a bald statement in para 6 of the affidavit stating that, they came to know about the order passed by the Tahsildar, Anekal only on 20th February, 2005 and immediately on the next day i.e., on 21st February, 2005, they submitted their application in the office of the Tahsildar, Anekal, requesting for issuing the certified copy of the order dated 10th June, 1982. Further, petitioners have stated that, they are the agriculturists and have no education and they being illiterates, are not aware of the consequences of the law and to redress their grievance before the appropriate forum and when they contacted their Counsel for advise, he has advised them to file an appeal before the Competent Authority and after getting the documents, they have filed the said appeal during the third week of June 2005 and hence, there is a delay in filing the said appeal. The said delay is not intentional and it is a bona fide one and if the said delay is not condoned, great hardship and irreparable loss will be caused to then. The said statement made by petitioners in paras 6 and 7 of the affidavit is produced along with the writ petition at ink page Nos. 108 and 109. The said statement made and explanation offered by the petitioners for condoning the delay of 23 years in filing the said appeal does not inspires the confidence of this Court. The said statement made by petitioners in paras 6 and 7 of the affidavit is produced along with the writ petition at ink page Nos. 108 and 109. The said statement made and explanation offered by the petitioners for condoning the delay of 23 years in filing the said appeal does not inspires the confidence of this Court. It is significant to note that, petitioners have not stated or whispered a word as to what is the source of information when they first came to know about the order dated 10th June, 1982. It is duty cast on the petitioners to explain the delay satisfactorily, by assigning cogent and valid reasons and showing the bona fide for condoning the said delay. This aspect of the matter has been rightly considered by the Appellate Court and has rightly rejected the said application. After careful perusal of the materials available on record and the statement made by petitioners in para 6 of the affidavit filed for condoning the delay of 23 years in filing the said appeal, I do not find any justification or sufficient ground, as such, made out by petitioners to look into their bona fides and to consider the matter, that too, after nearly 2½, decades for redressing their grievance by invoking the extraordinary jurisdiction. 7. Taking the above relevant factors into consideration, the Appellate Court has rightly considered the said application and rejected the same. Hence, interference by this Court, exercising the extraordinary jurisdiction under Article 227 of the Constitution of India is not justifiable. Nor I find any good grounds as such, made out by the petitioners to entertain this writ petition and nor they have produced any documents, at least before this Court to show that they are cultivating the land in question and as on the date, they are in possession of the same. If this is the position, entertaining this writ petition, at this stage, is not justifiable. Therefore, keeping in view all the facts and circumstances of the case as stated above, the writ petition filed by petitioners is liable to be dismissed as devoid of merits. 8. Learned Counsel appearing for petitioners Sri Prakash T. Hebbar has placed reliance on the decision of the Apex Court in the case of Mst. Katiji. Therefore, keeping in view all the facts and circumstances of the case as stated above, the writ petition filed by petitioners is liable to be dismissed as devoid of merits. 8. Learned Counsel appearing for petitioners Sri Prakash T. Hebbar has placed reliance on the decision of the Apex Court in the case of Mst. Katiji. There is no dispute or quarrel regarding the well-settled preposition of law laid down by the Apex Court in the said case. But, in the instant case, petitioners have neither made any sincere efforts nor stated the true facts or assigned valid and cogent reasons for condoning the delay in filing the said appeal before the jurisdictional Competent Authority as provided under the relevant provisions of Karnataka Village Offices Abolition Act, 1961. Therefore, the above reliance placed by learned Counsel appearing for petitioners will be of no assistance to the petitioners' case and hence, it is liable to be rejected. Accordingly, it is rejected. 9. Having regard to the facts and circumstances of the case as stated above, the writ petition filed by petitioners is dismissed as devoid of merits.