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2012 DIGILAW 358 (KAR)

Sundrabai v. Deputy Commissioner

2012-04-16

A.N.VENUGOPALA GOWDA

body2012
Judgment Venugopala Gowda, J 1. Petitioners are the wife and children of one Arjuna Nagendrasa Kathare, who purchased the land bearing Sy.Nos.789/16 and 786/6 of Ranebennur Village from Hanumantappa Basappa Basenayakar and Huchchappa Tai Hanumavva Basenayakar, under a registered Sale Deed dated 16.05.1968. Mutation entry in respect of the said property was made in the name of Arjunsa Nagendrasa Kathare on 15.05.1971 vide Annexure-B. 2. On 02.06.2007, 3rd respondent filed an appeal, under Section 136(2) of the Karnataka Land Revenue Act, 1964 (for short ‘the Act”), before the 2nd respondent, challenging the Mutation Entry No.7787 dated 15.05.1971 i.e., after about 35 years. The said appeal was allowed on 18.05.2009 vide order as at Annexure-F petitioners, questioned the said order, by filing a revision petition under Section 136(3) of the Act, before the 1st respondent. The revision petition was dismissed by an order dated 11.11.2010, as at Annexure-C. This writ petition is directed against the said orders. 3. Sri V.P. Kulkarni, Learned Counsel appearing for the petitioners, firstly, contended that the 2nd respondent has no jurisdiction to adjudicate the title to the property and the order, as at Annexure-F, is bad and illegal. Secondly, the 1st respondent has failed to consider the revision petition in accordance with law and the order, as at Annexure-C, is arbitrary and illegal. Thirdly, the impugned orders are cryptic, passed without application of mind and consideration of the matters in accordance with law. Fourthly, the appeal having been filed belatedly, despite objections filed to the application seeking condonation of delay, without consideration of the objections in accordance with law, there being no sufficient cause made out for condoning the inordinate delay of more than 35 years in filing the appeal, the order passed condoning the delay is illegal. He submitted that the law of limitation has to be enforced in its proper perspective and delay cannot be condoned without any justification. Fifthly, 3rd respondent ought to have been directed to establish his right to the property, if any, before the Civil Court. Instead, the order passed, as at Annexure-F, is wholly arbitrary and its upholding as per the order as at Annexure-C is illegal. 4. Fifthly, 3rd respondent ought to have been directed to establish his right to the property, if any, before the Civil Court. Instead, the order passed, as at Annexure-F, is wholly arbitrary and its upholding as per the order as at Annexure-C is illegal. 4. Sri B.C. Seetharama Rao, Learned Counsel appearing for the 3rd respondent, on the other hand submitted that, the impugned Mutation entry relates to land bearing Sy.Nos.789/16 and 786/6 of Ranebennur Village, which originally belonged to one Hanumantappa Basappa Basenayakar, who died on 05.07.1967, leaving behind him, his widow Smt.Bharmawwa, who made an application and Mutation Entry No.6769 was made on 13.12.1967, as per Annexure-G and that the said Bharmawwa died on 18.5.1998. Learned Counsel submitted that, during the lifetime of Bharmawwa, she had not sold the lands and house property and 3rd respondent being the grandson of Bharmawwa, got the katha of the residential house transferred to his name and thereafter approached the Revenue Authority to mutate his name in place of Bharmawwa and upon coming to know that katha of the aforesaid lands shows the name of Arjunsa Nagendrasa Kathare, he immediately obtained the certified copy and preferred an appeal before the 2nd respondent. Since the Mutation entry as per Annexure-B, had been made by the Talati and was accepted by the Revenue Inspector, contrary to law and as no notice had been served on the kathedar Bharmawwa, as required under Rule 65 of the Karnataka Land Revenue Rules, 1966 (for short ‘the Rules’), the entry showing the name of Arjunsa Kathare, was not only void but also contrary to mandatory provisions of the Act and hence the 2nd respondent was justified in passing the order, as at Annexure-F. The entry showing the name of Arjunsa Kathare had been made behind the back of Bharmawwa i.e., without notice to her and the said entry being void, upon coming to know of the same, an appeal was preferred without any loss of time. He submitted that, though there was no delay, as a matter of caution, an application seeking condonation of delay, if any, was filed and the 2nd respondent having examined the record of the case and finding that, impugned order in the appeal being wholly illegal, condoned the delay and allowed the appeal. He submitted that, though there was no delay, as a matter of caution, an application seeking condonation of delay, if any, was filed and the 2nd respondent having examined the record of the case and finding that, impugned order in the appeal being wholly illegal, condoned the delay and allowed the appeal. Learned Counsel submitted that the order passed by the 2nd respondent, as at Annexure-F, is final and the petitioners, if aggrieved, have to approach the Civil Court and hence the 1st respondent is justified in dismissing the revision petition. 5. Perused the writ petition record and considered the rival contentions. The point for consideration is, whether the impugned orders are arbitrary or illegal? 6. 3rd respondent questioned the certification of M.E.No.7787 dated 15.5.1971 of Ranebennur Village, by filing an appeal before the 2nd respondent, in June 2007. A separate application seeking condonation of delay was filed, to which, the petitioners herein, who were the respondents in the said appeal, filed statement of objections and contended that, no sufficiently cause has been shown for filing of the appeal after about 36 years and sought dismissed of the appeal. 7. The 2nd respondent having taken note of the rival contentions, without recording any finding on the question of delay, finding merit in the appeal, without assigning any reason, condoned the delay and allowed the appeal on 18.5.2009 (Annexure-F). 8. Aggrieved, the petitioners filed a revision petition, under Section 136(3) of the Act, before the 1st respondent. A specific ground was raised with regard to the flaw in the order passed by the Appellate Authority, on the question of delay. 1st respondent, after noticing the rival contentions, held that, since the Appellate Authority has condoned the delay, the impugned order can be upheld on technical ground and consequently, passed the Order dated 11.11.2010, as at Annexure-C, dismissing the revision petition. 9. An appeal to the prescribed Authority under Section 136(2) of the Act can be filed within a period of 60 days from the date of communication of the order or the knowledge of the entry certified Rule 15 of the Rules is with regard to the manner of presentation of appeals, etc. Rule 16 is with regard to the contents of the appeal, etc. Rule 16 is with regard to the contents of the appeal, etc. It is clear from the proviso under Rule 16, that in case of delay in filing the appeal, the applicant has to file a separate application along with an affidavit explaining the circumstances relied upon, failing which, the appeal or application shall be dismissed in limine. 10. In D.GOPINATHAN PILLAI vs. STATE OF KERALA AND ANOTHER (2007) 2 SCC 322 , an award was questioned after 3320 days. No explanation was given for the inordinate delay. The Court, without assigning any acceptable reason, condoned the delay. When questioned, the revision Court did not go into the merit of the delay question and dismissed the petition. The said orders were challenged before the Apex Court. While allowing the appeal, it ha been held as follows: “5. We are unable to countenance the finding rendered by the Sub-Judge and also the view taken by the High Court. There is no dispute in regard to the delay of 3320 days in filing the petition for setting aside the award. When a mandatory provision is not complied with and when the delay is not properly, satisfactorily and convincingly explained, the Court cannot condone the delay only on the sympathetic ground. The orders passed by the Learned Sub-Judge and also by the High Court are far from satisfactory. No reason whatsoever has been given to condone the inordinate delay of 3320 days. It is well-considered principle of law that the delay cannot be condoned without assigning any reasonable, satisfactory, sufficient and proper reason. Both the Courts have miserably failed to comply and follow the principle laid down by this Court in a catena of cases. We, therefore, have not other option except to set-aside the order passed by the Sub-Judge except to set-aside the order passed by the Sub-Judge and as affirmed by the High Court.” (Italicised by me for emphasis) 11. Perusal of the impugned orders, as at Annexure-C and F, would make it clear, that the objection raised by the petitioners with regard to the inordinate delay in filing of the appeal has not received the lawful consideration of the respondents 1 and 2. Mutation Entry dated 15.5.1971 was challenged by filing an appeal, in June 2007. Perusal of the impugned orders, as at Annexure-C and F, would make it clear, that the objection raised by the petitioners with regard to the inordinate delay in filing of the appeal has not received the lawful consideration of the respondents 1 and 2. Mutation Entry dated 15.5.1971 was challenged by filing an appeal, in June 2007. The appeal filed being not within the period prescribed under Section 136(2) of the Act and an application having been filed seeking condonation of delay, whether, there was ‘sufficient cause’ shows for condonation of delay or not, ought to have been examined, since statement of objections was filed to the application seeking condonation of delay and a reasoned decision ought to have been taken by the Appellate Authority. 12. Section 3 of the Limitation Act mandates that the suits or proceedings instituted after the prescribed period of limitation shall be dismissed. However, Section 5 vests the Court or the Authority, with power to admit an appeal or application filed, after expiry of the prescribed period of limitation, if the appellant shows sufficient cause for not preferring the appeal or application within the prescribed period. The cause shown should be understood and applied in a reasonable manner, depending upon the facts and circumstances of the case. The words, ‘sufficient cause’, appearing in Section 5 of the Limitation Act should receive liberal construction, so a to advance substantial justice, when the delay is not on account of want of bona fides on the part of the applicant. 13. When the affidavit filed in support of the delay condonation petition is contested by filing statement of objections, there is a need for the Court/Authority, to consider the matter and pass a reasoned order, since once a valuable right accrues in favour of one part, as a result of failure of other party to explain the delay by showing sufficient cause, it will be unreasonable to take away that right, on the mere asking of the applicant, if the delay is as a result of inaction or want of bona fides or negligence etc., on the part of the applicant. 14. Keeping the said factors in view, the 2nd respondent ought to have examined the case, to find out, whether sufficient cause has been shown for condonation of delay. 14. Keeping the said factors in view, the 2nd respondent ought to have examined the case, to find out, whether sufficient cause has been shown for condonation of delay. The 1st respondent, when approached with the grievance that, the 2nd respondent has not examined the case and decided the matter in accordance with law, ought to have examined the grievance in accordance with law and pass a reasoned order. The order passed by the 1st respondent, as at Annexure-C, is cryptic and exhibits total non-application of mind. Except recording in brief the case of both parties, 1st respondent has passed the order dismissing the revision petition, without assigning any reason. The 2nd respondent having not considered the issue relating to limitation, since there was long time gap between the date the impugned Mutation was certified and the appeal was filed, it cannot be said that, the order as to Annexure-F, is a considered order. Inordinate delay has been condoned by the 2nd respondent, for mere asking, without assigning proper reasons. 15. Mere giving an opportunity of hearing and recording in brief the case of the parties is not enough. The order passed should indicate reasons in support of the decision on disputed aspects of the case. The 1st and 2nd respondents, with regard to the impugned matter, perform quasi judicial function and hence, they are obligated in law, to record reasons in support of the order/s passed, which is not the case herein. Reasons have virtually become an indispensable component of decision making process. Thus, there is flaw in the decision making process and the impugned orders are vitiated. In the result, the Writ Petition is allowed. The orders passed by the respondents 1 and 2, as at Annexures-C and F, Respectively, are hereby quashed and the case in remanded to the 2nd respondent, for consideration in accordance with law, also keeping in view the observations made supra. The parties are directed to appear before the 2nd respondent, on 26.05.2012 and receive further orders. There shall be no order as to costs.