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2014 DIGILAW 801 (KAR)

Bhyraiah v. Bettegowda

2014-09-10

B.SREENIVASE GOWDA, N.K.PATIL

body2014
JUDGMENT: Although this appeal was listed in the orders list, with the consent of learned counsel appearing for both the parties, it was taken up for final disposal. Appellant, aggrieved by the order of the learned Single Judge dated 14th February 2012 passed on I.A.Nos. 1 and 2 of 2012 filed in W.P.No.536 of 2006 (SCST) has preferred this writ appeal. By the said order the learned Single Judge has dismissed I.A.No.1/2012 filed under Section 5 of Limitation Act and I.A.No.2/2012 filed under Section 151 of CPC. 2. We have heard the learned counsel appearing for the parties and perused the order impugned in the appeal. 3. Facts leading to this appeal are stated as under: An extent of 5 Acres 15 Guntas of land in Sy.No.20 of Karisiddanahalli village, renumbered as Sy.Nos.40/P1 and 40/P2, measuring 2 Acres 35 Guntas and 2 Acres 30 Guntas, respectively, hereinafter referred to as ‘land in question’ was granted to one Kariyaiah, S/o. Hanumaiah, herein after referred to as ‘Grantee’ by the Assistant Commissioner as per the order of Grant No.SDR/65/5657 dated 30th March 1957, with a condition of nonalienation for a period of 15 years. The Grantee died as issueless. After his death, one Siddaiah and his son Bhyraiah, the appellant herein claiming to be the legal heirs of the Grantee had sold the land in favour of Bettegowda on 1st December 1984 in violation of the terms of grant. Therefore, the appellant made an application before the Assistant Commissioner under Section 4(2) of the Karnataka Scheduled Caste and Scheduled Tribe (Prohibition of Transfer of Certain Lands) Act, hereinafter referred to as “SC and ST (PTCL) Act”, for restoration of the land in question in his favour. The Assistant Commissioner, by order dated 20th March 2000, allowed the application and declared the sale transaction as null and void but declined to order for restoration of the land in favour of the appellant, on the ground that he has failed to establish that he is the legal heir of the Grantee and with a liberty to move for restoration of the land in his favour after obtaining a necessary declaration from a competent Civil Court to the effect that he is the legal heir of the original grantee and entitled for restoration of land in his favour. The appellant, aggrieved by the said order of the Assistant Commissioner, challenged the same by preferring an appeal in No. PTL 02/2000-01 before the Deputy Commissioner, Chikkamagalur. The Deputy Commissioner by order dated 16th January 2001 allowed the appeal and set aside the order passed by the Assistant Commissioner in so far as declining to restore the land in favour of the appellant and remanded the matter to the Assistant Commissioner, Chikmagalur, with a direction to hold enquiry as to the legal heir ship of the Grantee by affording an opportunity to the appellant. 4. On remand, the Assistant Commissioner by registering the proceeding as PTCL: 8/2003-04 on his file and after holding enquiry, by order dated 30.6.2004, again declined to order for restoration of the land in favour of the applicant, on the ground that, he has failed to establish that he is the legal heir of the original grantee and ordered for effecting mutation in the name of Government. The appellant, again aggrieved by the order of the Assistant Commissioner dated 30.6.2004, challenged the same by preferring an appeal in PTL 7/2004-05 before the Deputy Commissioner, Chikmagalur, who by order dated 28th February 2005, dismissed the appeal and confirmed the order passed by the Assistant Commissioner. Aggrieved by the said orders passed by the Assistant Commissioner and the Deputy Commissioner, the appellant has challenged the same by preferring Writ Petition in W.P.No.536 of 2006 before this Court and the said writ petition came to be dismissed on 22nd July 2008 for non-prosecution. Hence, the appellant filed two applications in I.A. Nos. 1 and 2 of 2012. I.A.No.2/2012 under Section 151 of CPC read with Article 226 and 227 of the Constitution of India, for recalling the order dismissing the writ petition for non-prosecution and I.A.No.1/2012 under Section 5 of the Limitation Act, for condoning the delay of 3 years 5 months in filing the recalling application. Learned Single Judge, dismissed both the applications holding as under: “These applications filed on 8.12.2011 without showing sufficient cause for the inordinate delay and merely stating that counsel was dead without furnishing material particulars. It is not possible to accept the plea. Applications devoid of material dates and particulars, inaction, lack of bonafides and negligence can be attributable to the applicant” 5. Sri. It is not possible to accept the plea. Applications devoid of material dates and particulars, inaction, lack of bonafides and negligence can be attributable to the applicant” 5. Sri. N.S. Bhat, learned counsel appearing for the appellant submits, during the pendency of the writ petition learned counsel representing the appellant in the writ petition had died and consequently, there was no representation on behalf of the petitioner/appellant and therefore, the writ petition came to be dismissed on 22nd July 2008 for non-prosecution. In the affidavit filed in support of the delay application, the appellant except stating that “Advocate on record had already expired” has not stated when that Advocate on record has expired and when he came to know about the same and why there was delay of 3 years 5 months in filing the recalling application. As such an inordinate delay of 3 years 5 months in filing the recalling application has not been explained satisfactorily. Therefore, the learned Single Judge, considering above aspect of the matter is justified in dismissing the applications holding an inordinate delay of 3 years 5 months in filing the recalling application has not been properly explained. We have carefully gone through the order passed by the learned Single Judge and do not find any error warranting our interference. 6. Even on merits, appellant has no case because of the reason that, he has failed to establish before the Assistant Commissioner that he is the legal heir of the original grantee of the land in question and is entitled for restoration of the land in his favour by producing cogent material and therefore, the Assistant Commissioner who was pleased to declare the sale transaction relating to the land as null and void is justified in declining to order for restoration of the land in favour of the appellant with a liberty to approach him for restoration and land after obtaining a decree from a competent Civil Court that he is the legal heir of the original grantee of the land and entitled for restoration of the land in his favour. Therefore, it is always open for the appellant who claims to be legal heir of the original grantee of the land in question to approach a Competent Civil Court and obtain a decree to the effect that he is the legal heir of the original grantee of the land in question and entitled for restoration of the land in his favour. In that view of the matter, we do not see any error in the order of the learned Single Judge to interfere, that too, in the intra court proceedings. 7. Accordingly, appeal is dismissed as devoid of merit. No order as to costs.