IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NOs.22910/2011 & 23072/2011(KLR-RR/SUR) BETWEEN MUNITHIMAKKA @ THIMAKKA W/O LATE SHRI. M. MUNIYAPPA, AGED ABOUT 63 YEARS, R/AT NO.218, 40 FT ROAD, 1ST PHASE, MANJUNATHANAGAR, BANGALORE -560 010 ... PETITIONER (BY SRI ASHOK B PATIL, ADVOCATE) AND 1. THE ASSISTANT COMMISSIONER BANGALORE NORTH TALUK BANGALORE 2. THE TAHASHILDAR BANGALORE NORTH TALUK BANGALORE 3. SMT.K.MUNIRATHNAMMA D/O LATE AAKKAYAMMA AGED ABOUT 41 YEARS, R/AT NO.2, 23RD CROSS, KAGGADASAPURA BANGALORE -560 093 4. SHRI. K. NARASIMHA MURTHY S/O LATE AKKAYAMMA R/AT NO. 42, MUNINARASIMHAIAH GARDEN, 7TH MAIN, 7TH CROSS, BTM TAVAREKERE, BANGALORE-68 5. SHRI. K. PRABHU S/O LATE AKKAYAMMA AGED ABOUT 33 YEARS, R/AT NO.7/1, C-18, 11TH CROSS, MARUTHINAGAR, MADIWALA, BANGALORE -560 068 6. SHRI.K. ROOPA D/O LATE AKKAYAMMA AGED ABOUT 28 YEARS, R/AT NO.8, 23RD CROSS, KAGGADASAPURA, BANGALORE -560 093 7. SMT. POOJAMMA W/O LATE DODDADASAPPA AGED ABOUT 80 YEARS, BUSINESS: VEGITEBLES, KANTEERAVA STUDIO MAIN ROAD, OPP: BAKERY, NEAR ACHALA ASHRAM, KANTEERAVA NAGAR, BANGALORE 8. SHRI. C. RADHAKRISHNA S/O LATE CHIKKAVENKATAPPA AGED ABOUT 72 YEARS, # 117, BALAJI COMPLEX, BALAJI ENTERPRISES, OPP: KRISHNA PLAZA, LALBAGH MAIN ROAD, BANGALORE-27 9. SMT. NARAYANAMMA W/O LATE D. RAMAIAH, AGED ABOUT 48 YEARS, 10. SHRI. SRINIVASA S/O LATE D. RAMAIAH, AGED ABOUT 27 YEARS, 11. SMT. CHANDRAKALA D/O LATE D. RAMAIAH, AGED ABOUT 22 YEARS, 12. MASTER RAGHU S/O D. RAMAIAH AGED ABOUT 18 YEARS, 5 TO 8 ARE R/AT NO. 245, NELAGADARANAHALLI CHURCH MAIN ROAD A.K. COLONY BANGALORE – 560 073 13. RAMAIAH S/O LATE S.MYLARAPPA, AGED ABOUT 77 YEARS, NEAR POOJAMMA TEMPLE, 1ST MAIN, 1ST CROSS, NO.48, GORAGUNTEPALYA, YESHWANTAPURA, BANGALORE – 560 022 14. SMT. RATHNAMMA W/O LATE MUNISWAMAPPA, AGED ABOUT 62 YEARS, SRI. CHOWDESHWARI (KANASU) NO.10, 3RD CROSS, 6TH MAIN, MUNISWAMAPPA NAGAR, KANTEERAVA MAIN ROAD, BANGALORE -560 096 15. SMT. BHAGYAMMA W/O LATE MUNIYAPPA AGED ABOUT 67 YEARS, 16. MANJUNATH S/O LATE MUNIYAPPA AGED ABOUT 42 YEARS, NOs.11 AND 12 ARE RESIDING AT NO.31/3, MUNESHWARA TEMPLE ROAD, GORAGUNTEPALYA, YESHWANTHPUR BANGALORE-560 022 ... RESPONDENTS (BY SRI T.S.MAHANTESH, AGA FOR R1 & R2, SRI K.R.KRISHNAMURTHY BY LAWYERS INC., ADVOCATES FOR R3 TO R6 SRI B.G.THIMMAIAH, ADVOCATE FOR R15 & R16 R9 TO R14 ARE SERVED BUT UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS DATED 1.9.2010 AND 16.3.2011 VIDE ANNEXURE-G, PASSED BY THE FIRST RESPONDENT IN R.A.(B.N.) 58/2009-10 AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner herein is impugning the orders of 1st respondent – Assistant Commissioner dated 1.9.2010 and 16.3.2011 in proceedings bearing No.RA(BN) 58/2009-2010.
2. Admittedly, the proceedings before 1st respondent is initiated by deceased Akkayyamma wife of late Kenchappa under Section 136(2) of the Karnataka Land Revenue Act, 1964 challenging MR No.4/1991-92, dated 18.6.1992, made in favour of M.Muniyappa, the husband of petitioner – Munithimmakka and while challenging said MR entry Akkayyamma also challenged three other MR entries, which are not subject matter of these proceedings. It is stated that said proceedings is initiated with inordinate delay of more than 28 years and hence, an application seeking condonation of delay is also filed.
3. The grievance of the petitioner is that the 1st respondent without considering the application seeking condonation of delay has proceeded with the matter on merits, which is detrimental to her interest, in as much as the inordinate delay of 28 years will have to be considered on its merits before the appeal is taken up for consideration and that is the normal procedure that is required to be followed by the 1st respondent while exercising powers under Section 136(2) of the Karnataka Land Revenue Act, 1964. In the absence of following such procedure, as required under the Act, these petitions are filed impugning the order passed by the said authority.
4. In these matters admittedly, the proceedings before the 1st respondent – Assistant Commissioner is still pending and the same is required to be decided on its merits. However, firstly the application which is filed seeking condonation of delay should be considered and if it is considered in favour of the appellant in said proceedings, thereafter the appeal should be heard on merits. In that view of the matter, this Court find that question of waiting for issuance of notice to the respondent in said proceedings on the said application, who is petitioner herein is not necessary. It would be sufficient to dispose of these writ petitions with a direction to 1st respondent to decide the application filed under Section 5 of the Limitation Act at first instance and thereafter, to hear the appeal on merits depending on the result of the application filed seeking condonation of delay.
5. With such observations, these writ petitions are disposed of and the 1st respondent is directed to adhere to the procedure which is referred to supra while deciding the appeal pending in proceedings bearing No.RA(BN).58/2009- 2010.
Sd/- JUDGE nd/-