IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P. NOs.39326-39330/2019 (KVOA) BETWEEN:
1 . SMT. RAMAKKA D/O NARASAPPA & KOLLAMMA AGED ABOUT 55 YEARS.
2 . SRI. NARAYANAPPA S/O NARASAPPA & KOLLAMMA AGED ABOUT 51 YEARS.
3 . SMT. KRISHNAMMA D/O NARASAPPA & KOLLAMMA AGED ABOUT 48 YEARS.
4 . SRI. ANJINAPPA S/O NARASAPPA & KOLLAMMA AGED ABOUT 45 YEARS.
5 . SMT. MUTHYALAMMA D/O NARASAPPA & KOLLAMMA AGED ABOUT 56 YEARS.
ALL ARE RESIDENT OF KANIVENAHALLI VILLAGE, KASABA HOBLI, PAVAGADA TALUK, TUMKUR DISTRICT.
...PETITIONERS (BY SRI. NAIK N.R, ADVOCATE) AND:
1 . THE ASSISTANT COMMISSIONER MADHUGIRI SUB-DIVISION MADHUGIRI, TUMKUR DISTRICT – 572 101.
2 . THE TAHASILDAR PAVAGADA TALUK, PAVAGADA TUMKUR DIST – 561 202.
3 . SRI. SUBBANNA S/O NARASAPPA AGED ABOUT 68 YEAS.
4 . SRI. NARASIMHA S/O BABANNA @ NARASAPPA AGED ABOUT 63 YEAS.
RESPONDENTS 3 AND 4 ARE RESIDENT OF THIMMANAYAKANAPETE KASABA HOBLI, PAVAGADA TALUK TUMKUR DISTRICT – 572 101.
…RESPONDENTS (BY SRI. Y.D. HARSHA, AGA) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED:03.01.2005 PASSED BY THE R-1 PRODUCED AT ANNEXURE-B AND SET ASIDE THE ORDER ON I.A.NO.1 FILED IN APPEAL M.A.NO.(VOA) NO.5/2011 AND SAME HAS BEEN DISMISSED ON 16.11.2011 BY THE FAST TRACK COURT- V, MADHUGIRI, TUMKUR DISTRICT AND CONSEQUENTLY THE APPEAL CAME TO BE DISMISSED PRODUCED AT ANNEXURE-G.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri.N.R.Naik, learned counsel appearing for petitioners and Sri.Y.D.Harsha, learned AGA appearing for respondents-authorities, who is on advance notice. No notice is issued to respondent Nos.3 and 4 since petition is being dismissed at the threshold for reasons assigned herein below.
2. Petitioners claiming to be in possession of land bearing Sy.No.163 of Pavagada Village measuring 31 acres 21 guntas and claiming 1/8th share in the said land, sought for mutation of revenue records to their name contending interalia their grandfather was holding Office of Talwar and were entitled to be registered as occupants by way of regrant, since they have continued to be in possession of said land and as such they are entitled to seek for revenue records being mutated to their names.
3. Assistant Commissioner while considering the claim of petitioners by order dated 03.01.2005-
Annexure-B has observed that petitioners have not submitted any application for regrant of land under Karnataka Village Offices Abolition Act, 1961 (for short ‘Act’) and as such question of considering their claim for mutating revenue records on the basis of alleged possession, would not arise. Hence, Assistant Commissioner rejected their prayer.
4. Being aggrieved by the same, after a period of 6 years, an appeal came to be filed under Section 3(2) of the Act before the jurisdictional District Court, which was registered as MA (VOA) No.5/2011. Since there was inordinate delay of 6 years in filling the appeal an application for condonation of delay came to be filed. Said application came to be adjudicated by Fast Track Court and by impugned order dated 16.11.2011- Annexure-G dismissed the application and consequently, dismissed the appeal. Hence, petitioners are before this Court.
5. Sri.N.R.Naik, learned counsel appearing for petitioners would vehemently contend that observation made by the Assistant Commissioner for rejecting the claim is only on the ground of delay and merits have not been delved upon. As such Appellate Tribunal ought to have considered the appeal on merits by condoning the delay in filing the appeal by taking a pragmatic view and as such he prays for order dated 16.11.2011-Annexure-G passed by Fast Tract Court in MA (VOA) No.5/2011 being set aside and by allowing I.A.No.1 filed by petitioners under Section 5 of Limitation Act, 1963 and prays for matter being remitted back to adjudicating authority i.e., first respondent for being adjudicated afresh.
6. In the instant case, issue of grant/regrant is not involved at all, inasmuch as, it is not the case of petitioners that they had filed any application under Karnataka Village Offices Abolition Act, 1961, for regrant of land. Merely on the strength of possession being held and claiming 1/8th share or right over the subject land, petitioners sought for mutation of revenue records. It is for this precise reason, Assistant Commissioner has rightly observed that an order is already passed in VOA.CR.24/79 dated 24.01.1984 granting 1/8th share in favour of father of respondents thereunder i.e., Narasappa and there has been no application filed by alleged holder of village office and as such in the absence of any order regranting land in favour of holder of village office, question of mutating the revenue records does not arise and as such he has rejected the claim of petitioners by impugned order dated 03.01.2005-Annexure-B, which does not suffer from any infirmity either on facts or in law.
7. In the appeal filed against said order, which was belated namely, there being delay of about 6 years, it came to be considered and reasons or cause for delay sought to be explained as not being aware of said order, was not accepted by District Jude and rightly so. It is no doubt true that while considering an application for condoning delay, it is not the length of delay but cause for delay which would be of paramount consideration. As held by Hon’ble Apex Court in the case of COLLECTOR, LAND ACQUISITION, ANANTNAG AND ANOTHER VS MASTER KATIJI AND OTHERS reported in AIR 1987 SC 1353 where cause shown is not sufficient or there being no cause shown at all, it cannot be expected of an applicant even in such circumstances delay is to be condoned. In the instant case, petitioners herein in the affidavit supporting the application has not indicated the cause for delay except attempting to put the blame on the learned Advocate, who is said to have conducted the proceedings before Assistant Commissioner. In the absence of there being any sufficient cause shown delay does not deserves to be condoned. Hence, taking into consideration the dicta laid down by Hon’ble Apex Court in the case of CHENNAI METROPOLITAN WATER SUPPLY AND SEWERAGE BOARD AND OTHERS vs. T.T.MURALI BABU reported in (2014) 4 SCC 108 whereunder Hon’ble Apex Court has held that delay of 4 years, which was not been sufficiently explained, ought not to have condoned by the High Court. Hence, these petitions are liable to be dismissed by affirming the order passed by Appellate Court dated 16.11.2011. Accordingly, they stand dismissed.
Learned AGA is permitted to file memo of appearance within four (4) weeks from today.
SD/- JUDGE
DR