IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P. NO.24290/2016 (LR-RES) BETWEEN:
SRI. SURESH BABU S/O LATE VENKOBA RAO AGED ABOUT 67 YEARS AGRICULTURIST RESIDING AT PLOT NO.49 GHATAGE LAYOUT, M.S.K. MILL AREA GULBARGA – 585 102 REPRESENTED BY HIS G.P.A. HOLDER SHRI. N. SAI KUMAR S/O SRI. R. NARAYANA AGED ABOUT 40 YEARS RESIDING AT NO.17, 2ND MAIN ROAD, VASANTHANAGAR BANGALORE – 560 052.
(BY SRI. CHITHAPPA, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY REVENUE DEPARTMENT M.S. BUILDING DR. AMBEDKAR VEEDHI ROAD BANGALORE – 560 001.
2. THE TAHSILDAR BANGALORE EAST TALUK K.R. PURAM BANGALORE – 560 049.
... PETITIONER 3. THE ASSISTANT COMMISSIONER BANGALORE NORTH SUB-DIVISON KANDAYA BHAVANA, K.G. ROAD BANGALORE – 560 009.
... RESPONDENTS (BY SRI. A.C. BALARAJ, HCGP) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED:05.02.2016 PASSED BY THE KARNATAKA APPELLATE TRIBUNAL IN REVENUE APPEAL NO.41/2013 AS PER ANNEXURE-A CONSEQENTLY QUASH THE ORDER DATED:19.03.2008 PASSED BY THE R-3 ASSISTANT COMMISSIONER, BANGALORE NORTH SUB-DIVISION AS PER ANNEXURE-B THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri Chithappa, learned Advocate appearing for petitioner and Sri A.C.Balaraj, learned HCGP appearing for respondents-1 to 3.
2. Order dated 5.2.2016 (Annexure-A) passed by Karnataka Appellate Tribunal in Revenue Appeal No.41/2013 dismissing the appeal filed by the petitioner and affirming the order dated 19.03.2008 – Annexure-B passed by third respondent is under challenge in this petition.
3. Petitioner purchased 15 guntas of land in Sy.No.39/2 situated at Chikkagubbi village, Bidarahalli Hobli, Bangalore East Taluk under a registered sale deed dated 13.07.2006 . Proceedings under Section 79A. and 79B of Karnataka Land Reforms Act,1961 (for short ‘Act’) came to be initiated by third respondent in case No.LRF (B.E) 59/2006-07 and by order dated 19.03.2008 it came to be held that land purchased by petitioner is in violation of Sections 79A, 79B and Section 80 of the Act and ordered to forfeit the land to appropriate Government. Said order came to be affirmed by appellate tribunal in Revenue Appeal No.41/2013 by order dated 05.02.2016 (Annexure-A). Hence, this writ petition.
4. It is the case of the petitioner that he was neither notified by third respondent about said proceedings nor he was served with any notice by third respondent and as such, he was not aware of the order dated 19.03.2008 and only in December, 2012 he came to know about order dated 19.03.2008 and immediately filed an appeal with an application for condonation of delay contending that postal acknowledgment for having served the notice on petitioner which was found in the records of third respondent - Assistant Commissioner does not contain petitioner’s signature and as such, finding recorded by Assistant Commissioner that there was service of notice on the petitioner is erroneous. However, without considering this fact, tribunal has erroneously rejected the application for condonation of delay filed by the petitioner and consequently dismissed the appeal vide order dated 05.02.2016 – Annexure-A.
5. It is the contention of Sri Chithappa, learned Advocate appearing for petitioner that at no point of time, service of notice was effected on petitioner by third respondent in the proceedings initiated against petitioner for alleged violation of Sections 79A, 79B and 80 and if petitioner was made aware of it by effectively serving notice on him, he would have definitely appeared before third respondent and contested the matter; since petitioner being an agriculturist possessing agricultural land, he would not fall within the mischief of Section 79A and 79B of the Act and on the ground to lack of opportunity, he could not place the material before Assistant Commissioner and as such, order dated 19.03.2008 passed by third respondent – Assistant Commissioner vide Annexure-B is erroneous and liable to be quashed. He would also submit that being aggrieved by the said order, petitioner had filed an appeal and there was delay of 4 years in filing the appeal and as such an application under section 5 of the Limitation Act came to be filed and appellate tribunal ought to have considered the application for delay by allowing it and consequently, appeal also should have been allowed. Hence, he prays for setting aside the order passed by appellate tribunal and prays for allowing the petition.
6. Sri A.C.Balraj, learned HCGP appearing for respondents-1 to 3 would support the impugned order. He would also add that delay being inordinate, appellate tribunal has rightly rejected the application and there is no error committed by the authorities calling for interference at the hands of this Court.
7. Having heard the learned Advocates appearing for parties and on perusal of the records and after bestowing my careful consideration to the rival contentions raised at the bar, it requires to be noticed at the outset, that third respondent - Assistant Commissioner who initiated the proceedings against petitioner for alleged violation of Sections 79A & 79B of the Act has held that notice issued to the petitioner was duly served. In fact, appellate tribunal has also relied upon postal acknowledgment purported to be available in the original records and as such has arrived at a conclusion that there was service of notice and petitioner had suppressed this fact. Said findings are erroneous for reasons more than one namely, (1) firstly, postal acknowledgment which is relied upon by appellate tribunal has been produced at Annexure-O in this petition and perusal of same would clearly indicate that postal article which has been dispatched from the office of third respondent is addressed to one Suresh Babu bin late Venkobrao, Gulbarga i.e., petitioner herein. In the cause title of the order dated 19.03.2008, full postal address of the petitioner is reflected. However, in the postal acknowledgment, it is indicated as ‘Gulbarga’ only without full postal address. As such, it cannot be presumed that postal article has been delivered to the petitioner. Secondly, postal acknowledgement primafacie looks to have been signed by one ‘S Pawar’, whereas, petitioner’s name is ‘Suresh Babu’. It is for these reasons petitioner has rightly claimed that he was not served with notice of proceedings and he was not aware of the impugned order dated 19.03.2008 and immediately coming to know of this order in the year 2012, he had filed an appeal before appellate Tribunal along with application for condonation of delay.
8. While considering an application for condonation of delay, it is not length of delay but cause of delay which would be a paramount consideration. If the cause shown is sufficient, number of delay howsoever high it may be would recede to background. If there is inordinate delay and cause shown therein is not sufficient, then, delay does not deserve to be condoned. Thus, it all depends on facts and circumstances of the case. In fact, no litigant would stand to benefit from approaching the courts or authorities belatedly that too, while defeating his/her right over the immovable property. When substantial justice is pitted against technicalities, such technicalities will have to necessarily kneel down before substantial justice. In other words, technicalities will have to make way for substantial justice. Hon’ble Apex Court in the case of COLLECTOR, LAND ACQUISITION, ANANTNAG AND ANR vs. MST. KATJI AND OTHERS reported in AIR 1987 SC 1353 has defined contours for consideration of plea for condonation of delay. Such contours are illustrative in nature and not exhaustive. Keeping these principles in mind, when cause shown for delay is examined, this court is of the considered view that appellate tribunal committed a serious error in rejecting the application for condonation of delay for entertaining appeal that too, on the ground that there was due service of notice on the petitioner before the third respondent - Assistant Commissioner. As already noticed herein above, service of notice on the petitioner before third respondent has been held to be not proper and insufficient. In that view of the matter, impugned orders cannot stand test of law and necessarily matter deserves to be remanded back to the fact finding authority to examine the claim of petitioner on merits and in accordance with law. This court in exercise of writ jurisdiction would not be in a position to ascertain factual aspects and as such, it would be appropriate to remit the matter back to first respondent to re-examine the matter keeping in mind the provisions of Section 79A, 79B of the Act.
Hence, I proceed to pass the following:
ORDER (1) Writ petition is allowed.
(2) Orders dated 05.02.2016 passed by Karnataka Appellate Tribunal in Revenue Appeal No.41/2013 (Annexure-A) and order dated 19.03.2008 passed by third respondent in case No.LRF (B.E) 59/2006-07 (Annexure- B) are quashed. Matter is remitted back to third respondent for being considered and disposed of on merits and in accordance with law keeping in mind the observations made above, after giving opportunity to the petitioner.
(3) No order as to costs.
SD/- JUDGE *sp