Research › Search › Judgment

Karnataka High Court · body

2015 DIGILAW 968 (KAR)

Commissioner, Bruhath Bangalore Mahanagara Palike v. Mujeeba Begum

2015-08-21

B.MANOHAR, VINEET SARAN

body2015
ORDER : These are three sets of appeals filed against the order of the learned Single Judge passed in three writ petitions, which all have been filed with delay. WA Nos.8769-8770/2012 and 1583-87/2013 have been filed with a delay of 874 days. In the other W.A.No.2755/2013, delay is of 2279 days and in W.A.No.4393/2013, delay is of 844 days. Appellants in all the three appeals, Bruhath Bangalore Mahanagara Palike (for short “BBMP”), have filed these appeals along with applications for condonation of delay, to which objections have also been filed by the respective respondents. 2. We heard Sri R Ramachandran, learned counsel appearing for the appellants in all the appeals; and Sri Udaya Holla, learned Senior counsel as well as Sri M D Raghunath, and Sri Sunil Dutt Yadav, learned counsel all appearing for the respondents in the three sets of appeals. We have also perused the record. 3. Before considering the applications for condonation of delay, brief facts of the case may be narrated: 4. Respondents in all these appeals had filed writ petitions with the prayer for mutating their names in the ‘khata’ register maintained by the appellants (BBMP) with regard to certain properties, which the writ petitioners, who are respondents herein, claimed to be the owners. W.P.No.11118/2006 was filed by Sri K Venkatarathnam, which was disposed of by order dated 5.12.2006. In the said petition, even though the endorsement dated 4.8.2005 made by the BBMP refusing to transfer the ‘khata’ of the petitioner therein, was not challenged, yet after quashing the same, BBMP was directed to “substitute the name of the petitioner as the kathedar of the property in question and issue a certificate without prejudice to the claim of title of the Corporation over the property in question and subject to the Corporation establishing its title in a properly instituted legal proceeding.” In view of the said direction, the name of the petitioner therein was mutated. Challenging the said order, W.A.No.2755/2013 has been filed. 5. Following the aforesaid judgment dated 05.12.2006 passed in W.P.No.11118/2006, similar orders have also been passed in other two sets of writ petitions, against which WA Nos.8769-8770/2012 & 1583-87/13 and 4393/2013 & 5840-43/2013 have been filed by the BBMP with substantial delay. 6. Challenging the said order, W.A.No.2755/2013 has been filed. 5. Following the aforesaid judgment dated 05.12.2006 passed in W.P.No.11118/2006, similar orders have also been passed in other two sets of writ petitions, against which WA Nos.8769-8770/2012 & 1583-87/13 and 4393/2013 & 5840-43/2013 have been filed by the BBMP with substantial delay. 6. The submission of Sri R Ramachandran, learned counsel for the appellants, is that there were title disputes with regard to a large portion of properties relating to Sy.Nos.16, 18 and 19, portions of which is being claimed by the respondents herein It is contended that although land of the said survey numbers is of over 13 acres, which according to the appellants, belonged to them (BBMP), but after several government buildings have been raised on the said survey numbers, only about one acre of land remains unoccupied. The submission is that in W.A Nos.8769-8770/2012 and 1583-1587/2013, the claim of writ petitioners therein is with regard to over three acres of land. It has also been submitted that suits for declaration of title in all the cases are pending before the Trial Court and no declaration with regard to ownership of writ petitioners has yet been given by any competent court of law. It has been submitted that the BBMP is the owner of the entire land covered by the said survey numbers. However, on the basis of some sale deeds said to have been executed in favour of the petitioners by some strangers (who claimed to be the owners of the plots in question without there being title in their favour), the writ petitioners are now claiming to be owners, without having been able to establish their right over the respective plots claimed by them. It is also submitted that in some cases, the Corporators of BBMP are either sellers, or purchasers, of the said property and in one case even the Member of Legislative Assembly (for short “MLA”) of the area was involved and as such, the submission of the learned counsel for the appellants is that to a large extent, such highly connected persons were responsible for not taking action against the writ petitioners in grabbing the land of BBMP, as they were involved in the decision making process regarding challenging the orders passed in the writ petitions, and thus, there has been delay in filing the appeals. 7. 7. Sri Ramachandran, learned counsel for the appellants submitted that in W.P.No.11118/2006, a direction was for mutation in favour of the writ petitioners therein, which was subject to the Corporation establishing its title in a properly instituted legal proceeding. Certain suits and appeals had been filed by the writ petitioners therein, as well as by the BBMP, and ultimately it was on 5.3.2012 that the Regular First Appeal (RFA) was decided in favour of the BBMP, holding that the petitioners had no right over the property, as they had failed to prove their title. Under the threat of contempt, the name of writ petitioners therein had been mutated, but no title has yet been proved by them, whereas on the other hand, BBMP has succeeded in the suits and appeals. However, it is contended that since once the name of writ petitioners had been mutated, it could not be withdrawn, without there being an order of Court. Hence, after succeeding before the lower Courts, the BBMP has now challenged the order passed by the writ Court, on the basis of which the names of the writ petitioners had been mutated. 8. In other two sets of appeals, the order has been passed by the writ Court on the basis of the judgment dated 5.12.2006 in W.P.No.11118/2006, but the name of writ petitioners therein has yet not been mutated. 9. The delay in filing the appeals was initially explained by filing a short affidavit, but subsequently, time was granted to the appellants to file a better affidavit. In response thereto, a very detailed affidavit of more than a dozen pages has been filed, wherein it has been clearly stated that the land is valued at several crores of rupees and that because of the involvement of local Corporators, as also the MLA, the papers relating to filing of the appeals against the judgments of the writ Court, could not move quickly. Though day to day explanation for the delay is not there, but details regarding general movement of files, and the reasons for their slow movement, have been given in the said affidavit. Though day to day explanation for the delay is not there, but details regarding general movement of files, and the reasons for their slow movement, have been given in the said affidavit. In such background, it has been contended by the learned counsel for the appellants that the property in question is situated in the heart of Bengaluru City, which is highly valued, and attempt is being made by certain persons, including the writ petitioners, to grab such property with the help of politically powerful persons and also the officials of BBMP, thereby depriving the BBMP, which alone has legal right over such property. It has also been stated that even though the writ petitioners have not been able to establish their right over the property by way of any declaration having been given in their favour by any competent Court of law, yet the writ petitioners want their names to be mutated and thus claim some right over the property. It has been submitted that the property is located in prime area and the land dealers are trying to claim right over such property through sale deeds executed by those who are not even owners of the land, and on the basis of such sale deeds, and with the support of the high and mighty persons, claims are made by the writ petitioners – respondents herein to be owners of such plots. 10. Sri Ramachandran, learned counsel for the appellants urged that cause of the State should not suffer, merely because of technicality of not having filed the appeals within the stipulated time as, in the present case, the matter involves public property valued at several crores, which is held by the Corporation in public trust. It is, thus, contended that the delay in filing the appeals should not come in the way of imparting justice to the appellant, which is a government agency. Lastly, it has been submitted that ‘sufficient cause’, as mentioned in Section 5 of the Limitation Act, does not limit the number of delays for which such ‘sufficient cause’ can be explained, and even in case where there is a delay of large number of days or months, yet, if the Court finds that there was ‘sufficient cause’ which prevented the appellants from filing the appeal within the stipulated time, in the interest of justice, such delay should be condoned. 11. 11. Per contra, learned counsel for the respondents have submitted that the delay in the present appeals is not of a few days, but many months and that there is no separate law of limitation governing governmental agencies, and that BBMP is to be treated just like any other person while considering its application for condonation of delay in filing the appeals. It has been submitted that the delay in filing the present appeals has not been properly explained and it was the duty of the appellants to explain the day to day delay, and that mere narration of facts (as has been pleaded in the better affidavit filed by the appellants), cannot be said to be sufficient cause. It has been contended that once the period of limitation is over, the party in whose favour decision is given, acquires the right to the extent that the order in his favour becomes final, as no appeal has been filed, and as such, in case the appeal is filed after the period of limitation, the same should be condoned only when there is sufficient cause. 12. No doubt, the law of limitation applies equally to every one, but the Courts have consistently held that in the case of government or governmental agencies, the same should be applied more liberally. The officials of governmental agencies work in an impersonal manner, as against in the case of a private litigant, who has personal interest. The Courts have also held that the government or its agencies represent the collective cause of the public at large. We are also to keep in mind that while considering such matters, Courts have also held that though law of limitation is same for government and private persons, but some laxity is to be given where government has made out a case of there being public interest involved, in which case, Courts are required to do substantial justice and the expression ‘sufficient cause’ has to be given a liberal interpretation. There are large numbers of cases where the courts have condoned the delay of not only a few years, but even a couple of decades. This has been done by the Courts only to ensure that substantial justice is done, and that the cause of justice does not suffer because of technicalities. 13. There are large numbers of cases where the courts have condoned the delay of not only a few years, but even a couple of decades. This has been done by the Courts only to ensure that substantial justice is done, and that the cause of justice does not suffer because of technicalities. 13. The Supreme Court in the case of State of Haryana vs. Chandra Mani and others ( AIR 1996 SC 1623 ) has observed that for condoning the delay in filing the appeal, the only condition is that the applicant/appellant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Further, in para7 it has been observed that “Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represent collective cause of the community, does not deserve a litigant-non-grata status”. Then, in paragraph10 of the said judgment, the Apex Curt proceeded to hold that: “…………..It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officer/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay – intentional or otherwise – is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression “sufficient cause” should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining everyday’s delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and require adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit………………Equally, the state cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants”. Further, in the case of Nand Kishore V/s State Of Punjab reported in (1995) 6 SCC 614 , where the High Court had upheld the order of compulsory retirement, the Supreme Court, considering the exceptional circumstances, condoned the long durated delay of 31 years in filing the special leave petition. 14. In a case of G. Ramegowda, vs. The Special Land Acquisition Officer, Bangalore ( AIR 1988 SC 897 ), the Apex Court has held that: “7. …………However, the expression ‘sufficient cause’ in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. xxxx xxxx “It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. xxxxx xxxxx “The law of limitation is, no doubt, the same for a private citizen as for Governmental authorities, Government, like any other litigant must take responsibility for the acts or omissions of its officers. xxxxx xxxxx “The law of limitation is, no doubt, the same for a private citizen as for Governmental authorities, Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it.” 15. It is true that the Supreme Court in the case of Postmaster General and others vs. Living Media India Limited and another (2012) 3 SCC 563 has held that “Government in filing an appeal cannot be claimed that they have a separate period of limitation when the department was possessed with competent persons familiar with court proceedings”. It may, however, be clarified that in the said case, no public cause was involved, and thus the said decision is distinguishable on facts. 16. The other decisions which have been relied upon by the learned counsel for the respondents are AIR 1964 SC 215 (Union of India vs. Ram charan), AIR 1962 SC 361 (Ramlal and others vs. Rewa Coalfields Ltd.) and (2012) 5 SCC 157 Maniben Devraj Shah vs. Municipal Corporation of Brihan, Mumbai. All these cases relate to private disputes between the parties, wherein also, no public cause or public interest was involved and as such, the observations made in the said decisions do not apply in the facts and circumstances of the present case. 17. From the facts of these appeals, what we find is that the writ petitioners had come up with an innocuous prayer of a direction to mutate their names. The property is to be mutated in favour of a person only when such person has legal right over the property. Undisputedly, the suit for declaration of title with regard to ownership of property in question, was pending and in one of the case, where the delay in filing the appeal is maximum, the matter is concluded against the writ petitioners. The property in question is located in the heart of city of Bengaluru. It is a very valuable property, in which (as has been stated by the appellants) besides the officials of the Corporation itself being interested, some corporators, as well as an MLA, are interested parties. 18. The property in question is located in the heart of city of Bengaluru. It is a very valuable property, in which (as has been stated by the appellants) besides the officials of the Corporation itself being interested, some corporators, as well as an MLA, are interested parties. 18. In the aforesaid facts, if the delay is not condoned and these appeals are not taken up on merits, in our opinion, the cause of justice would suffer, as the order passed by the writ Court would go unchallenged, because of which there can be a possibility of high value land (which the appellant claim to be belonging to it i.e., BBMP) may go in the hands of persons, who may not even be concerned with such land. In cases where high valuation of property is involved, and there is a direct involvement of persons high and mighty, the challenge to the orders can be interfered with by such persons and thus delayed. In such facts, in our opinion, it may not be necessary to explain day to day delay in filing the appeals, but if the Court comes to conclusion that on perusal of the records, there is sufficient cause for the delay in filing the appeals, which may be of a few months or even a few years, the same should be condoned, because if the delay is not condoned, the cause of justice would suffer. 19. In view of the aforesaid, we are of the considered opinion that in the facts of the present case, the applications for condonation of delay in filing the present appeals deserve to be allowed, and accordingly the same are allowed. The delay in filing the appeals stands condoned. Let the appeals be listed for admission after six weeks.