IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR JUSTICE K.NATARAJAN WRIT PETITION No.6834/2014 (SC/ST) BETWEEN:
SRI.SHANKARA NAIKA S/O.NARAYANA NAIKA AGED ABOUT 30 YEARS R/O.AMBARAGOPPA SHIKARIPURA TALUK SHIMOGA DISTRICT-577 424. ….PETITIONER (SRI.G.S.BALAGANGADHAR, ADV.) AND:
1. THE DEPUTY COMMISSIONER SHIMOGA DISTRICT SHIMOGA-577 201 2. THE ASSISTANT COMMISSIONER SHIMOGA SUB-DIVISION SHIMOGA-577 401 3. SRI.B.N.NAGAPPA S/O.BINDAPPA AGED ABOUT 56 YEARS R/O AMBARAGOPPA SHIKARIPURA TALUK SHIMOGA DISTRICT-577 424. … RESPONDENTS (BY SMT.SAVITHRAMMA, HCGP FOR R-1 & R-2 SRI.R.V.JAYAPRAKASH, ADV. FOR R-3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE DEPUTY COMMISSIONER, SHIMOGA, R1, IN CASE NO.SC/ST2/2010-11, DT:27.01.2014 PRODUCED AT ANNEXURE-A, AS THE SAME IS IMPUGNED, PERVERSE AND CAPRICIOUS AND THE SAME IS LIABLE TO BE SET ASIDE AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed by the petitioner challenging the order of dismissal passed by respondent No.1 – Deputy Commissioner, Shivamogga District in SC/ST2/2010-11 dated 27.01.2014.
2. Heard the arguments of the learned counsel for the petitioner, counsel for respondent No.2 and learned HCGP for R.1 and 2.
3. The case of the petitioner is that petitioner is the legal heir of grantee of the land in Sy.No.114 of Sheelavanthanakoppa Village, Shikaripura Taluk measuring 3 acres 34 guntas and subsequently, the original grantee sold the land in question in the year 1982. On the application filed by the original grantee, the Assistant Commissioner said to have resumed the land and restored as per order dated 11.06.1982. Subsequently, again the said original grantee sold the land to present respondent No.3 on 06.06.1989. The Assistant Commissioner took up suo moto action under Section 5 of The Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to ‘PTCL Act’ for short) and resumed the land to the Government. Assailing the same, the present petitioner filed an appeal before the Deputy Commissioner and the Deputy Commissioner allowed the appeal dated 24.03.2008 and restored the land to the present petitioner who is the legal heir of the grantee. Assailing the same, the purchaser – respondent No.3 – B N Nagappa filed Writ Petition No.11208/2008 and this Court allowed the petition and remitted the matter back to the Deputy Commissioner dated 21.01.2009. Petitioner also preferred Writ Appeal before the Division Bench of this Court which came to be dismissed and order of this Court in W.P.11208/2008 has been confirmed. Subsequently, the matter has been taken up by the Deputy Commissioner after remand by this Court. However, vide impugned order Annexure ‘A’, the Deputy Commissioner dismissed the appeal filed by the petitioner on the ground no application for condonation of delay is filed in the appeal as directed by the order of this Court in Writ Petition. Assailing the same, the grantee/petitioner is before this Court.
4. Learned counsel for the petitioner has contended that though counsel for the respondent in the Writ Petition has undertaken to file application to implead the purchaser as a party/respondent, as well as to make an application for condonation of delay in filing the appeal but in fact, the appeal came to be filed in the year 2005. Assailing the order passed by the Assistant Commissioner in the year 1992, an application for condonation of delay has been filed. The delay has been condoned by the Deputy Commissioner in his order vide Annexure ‘D’. However, after remand, there is no separate interlocutory application filed by the petitioner for condonation of delay. Based upon that non-filing of the application, the Deputy Commissioner has dismissed the appeal on the ground of delay in filing the appeal. Therefore, it is contended that once the application is already filed and available along with the appeal memo, it is not necessary to file one more application for condonation of delay but due to inadvertence, counsel appearing for the petitioner in the Writ Petition has undertaken to file a delay application while filing the impleading application. Therefore, merely non-filing of application for condonation of delay, the Deputy Commissioner ought not to have dismissed the appeal without considering the application for condonation of delay which is already available with the Deputy Commissioner in the appeal. Therefore, prays for allowing the writ petition.
5. Per contra, learned counsel for respondent No.3 strenuously contended that the counsel for the petitioner himself undertook to file the delay application along with the impleading application before the Deputy Commissioner. Once, he has undertaken it is the duty of the counsel for the petitioner to file the application for condonation of delay, which has not been done. The order directing the petitioner for filing the delay application has been confirmed and merged with the order of the Division Bench passed in Writ Appeal. Therefore, without filing any application for condonation of delay, Deputy Commissioner rightly dismissed the appeal on the point of delay. There is no illegality or error committed by the Deputy Commissioner to set- aside the order in this petition. Hence, prayed for dismissal of the writ petition.
6. Learned HCGP appearing for 1st respondent also supported the order of the Deputy Commissioner and contended that the counsel for the petitioner himself had undertaken to file the application for condonation of delay. It is his duty to file an application for condonation of delay. Thereafter, no application is filed for condonation of delay. Therefore, there was no option for the Deputy Commissioner but to dismiss the appeal on the point of delay and the order under challenge suffers from no illegality, hence, prays for dismissal of the petition.
7. Upon hearing the arguments of the learned counsel for the parties and on perusal of the records, it is admitted that previously the land has been resumed by the Assistant Commissioner vide his order dated 20.05.1992 by taking suo moto action under Section 5 of the PTCL Act. The original grantee has not chosen to file any appeal before the Deputy Commissioner but the present petitioner viz., the legal heirs of Narayana Naika filed an appeal in the year 2005 before the Deputy Commissioner along with an application for condonation of delay which came to be allowed by the Deputy Commissioner under order dated 24.03.2008 produced herein as Annexure – ‘D’. On perusal of the order of the Deputy Commissioner, it clearly goes to show that the delay has been condoned by the Deputy Commissioner and allowed the appeal by confirming the order of resumption and restored the land to the legal heirs of the grantee. The same was set-aside by this Court in Writ petition on the ground that the purchaser has not been made as a party in the appeal by the legal heirs of the grantee. On that ground the order passed by the Deputy Commissioner vide Annexure ‘D’ dated 24.03.2008 has been set-aside by this Court however, on the undertaking given by the counsel for the petitioner for impleading respondent No.3 – the purchaser as an additional respondent in the appeal and also to file application for condonation of delay.
8. Thereby the fact remains that the appeal has been filed in the year 2005. Along with the appeal, the appellant filed an application for condonation of delay which was allowed by the Deputy Commissioner and later set-aside by this Court. This Court set-aside the order passed by the Deputy Commissioner both on I.A. as well as on the appeal on the ground that purchaser has not been made as a party. After the direction of remand made by this Court, the Deputy Commissioner took up the appeal by giving new number to the same appeal filed by the petitioner. It is not a new application or appeal memo filed by the petitioner but only the order of the Deputy Commissioner has been set-aside but not ordered either on appeal memo or on I.A. filed by the petitioner for condonation of delay. Such being the case, though there was an undertaking made by the counsel for the petitioner for filing an I.A. for condonation of delay, in fact, the I.A. for condonation of delay is already filed along with appeal memo. The only direction to be followed by the petitioner is to implead the purchaser as party and as additional respondent as required under Section 5 of the PTCL Act for making any order for resumption or restoration under PTCL Act. Therefore, in my considered opinion, petitioner is not required to file one more application for condonation of delay when there is already an application filed along with the appeal memo. Therefore, the order of dismissal mainly on the ground of non-filing of application for condonation of delay is not sustainable in law and has to be set-aside. Hence, I pass the following:
ORDER Writ Petition is allowed. The order passed by the Deputy Commissioner vide Annexure – A dated 27.01.2014 dismissing the appeal on the ground of non-filing of application is set-aside and the matter is remitted for fresh consideration of the application for condonation of delay already filed by the petitioner along with the appeal memo and dispose the appeal in accordance with law.
SD/- JUDGE Brn