IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JUNE, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S. PATIL WRIT PETITION Nos.20293 & 20344/2017 (KLR-RES) BETWEEN:
Sri V. Ramprasad S/o Late Varadaraju Aged about 50 years R/o No.155/A 9th Main, RMV Extension Sadashivanagar Bengaluru – 560 080 …Petitioner (By Sri Vishwanath H M, Advocate) AND:
1. State of Karnataka Revenue Department M.S.Building Dr. B.R.Ambedkar Veedhi Bengaluru – 560 001 2. The Assistant Commissioner Doddaballapura Sub Division Doddaballapura – 561 203 3. The Tahsildar Devanahalli Taluk Devanahalli – 562 110 Bengaluru Rural District 4. Smt. Lakshmamma W/o Late Chikkamarappa Aged about 50 years 5. Smt. Shasikala C W/o Munivenkatappa D/o Chikkamarappa Aged about 32 years 6. Smt. Anitha C W/o Narayanaswamy D/o Chikkamarappa Aged about 30 years 7. Kumari Jyothi C D/o Late Chikkamarappa Aged about 24 years 8. Barath C S/o Late Chikkamarappa Aged about 20 years 9. Smt. Pedakka W/o Ramu D/o Late Marabovi Aged about 52 years 10. Smt. Yarrakka W/o Venkataswamy D/o Late Marabovi Aged about 49 years All are R/at No.778 3rd Cross, Ramabovi Colony Jallahalli village Bengaluru – 560 030 ...Respondents (By Sri T.S.Mahantesh, AGA for R-1 to R3 & R-4 to R-10 served unrepresented) These writ petitions are filed under Articles 226 and 227 of the Constitution of India praying to call for entire records pertaining to R.A.(DH) No.94/2016-17 on the file of the Asst. Commissioner, Doddaballapura Sub Division, Doddaballapura and quash the impugned order dated 12.04.2017 passed by the Second respondent in R.A.(DH) No.94/2016-17 on the file of the Asst. Commissioner, Doddaballapura Sub Division, Doddaballapura, produced at Annexure-A, etc.
These writ petitions coming on for orders this day, the Court made the following:
O R D E R In these Writ Petitions, petitioner is calling in question order dated 12.04.2017 passed by the Assistant Commissioner, Doddaballapura Sub-Division, Doddaballapura, second respondent herein, thereby granting an interim order of stay of the mutation entry effected in the name of petitioner vide MR No.11/2009- 10 dated 15.05.2010.
2. The main contention of the learned counsel for the petitioner is that appeal before the Assistant Commissioner, in R.A.No.94/2016-17 has been filed by respondents No.4 to 10 herein, challenging the said mutation entry effected in the year 2010, after lapse of nearly six years invoking provisions contained under Section 136(2) of the Karnataka Land Revenue Act. It is his contention that the said appeal was apparently barred by time, as the period of limitation prescribed to present such an appeal was sixty days, hence Assistant Commissioner could not have granted an interim order of stay without notifying the petitioner and hearing him with regard to the application filed seeking condonation of delay. He urges that unless delay was condoned, the Assistant Commissioner would not be justified in entertaining the appeal and granting an interim order of stay in the matter like this.
3. Learned Additional Government Advocate, who has taken notice for respondents No.1 to 3 submits that the Assistant Commissioner has exercised his discretion in the matter and therefore, there is no justification for the petitioner to challenge the interim order of stay, as he is entitled to move the Assistant Commissioner for vacation of the interim order.
4. Respondents No.4 to 10 have remained unrepresented, though notice has been duly served on them.
5. Having heard the learned counsel for the petitioner and learned AGA and on perusal of the pleadings and impugned order, I find that the Assistant Commissioner has granted an exparte interim order of stay in an appeal filed challenging the mutation entry effected way-back on 15.05.2010 by the Tahsildar, Devanahalli Taluk. As rightly contended by the learned counsel for the petitioner, impugned order does not disclose any application of mind to the inordinate delay on the part of the appellants before the Assistant Commissioner, in filing the appeal.
6. As per Section 136(2) of Karnataka Land Revenue Act, an appeal before the Assistant Commissioner challenging the certification of mutation entry made by the Tahsildar can be filed within a period of sixty days from the date of communication of order or knowledge of the entries certified. It is true, an application has been filed by the respondents herein seeking condonation of delay explaining the delay. But, even when such an application is filed, having regard to the inordinate delay in approaching the Court, the Assistant Commissioner has to apply his mind before granting an exparte interim order of stay. There is no such application of mind as is clear from the impugned order. The impugned order reads as under:
“12.04.2017 : Case called. Appellants counsel present and prays to stay MR No.11/2009-10, hence, MR No.11/2009-10 is hereby stayed till further orders, case posted on 26/04/2017”
7. It is apparent from this order that the Assistant Commissioner has not even noticed the inordinate delay of six years in filing the appeal and the fact that the appellants before him had sought for condonation of the same. The order does not speak anything with regard to the same. Therefore, in my view, such an approach by the Assistant Commissioner in granting an exparte interim order in an appeal which is apparently barred by time cannot be sustained. In the absence of anything to show that the discretion vested in the Assistant Commissioner has been exercised judiciously in order to prevent imminent miscarriage of justice, such an approach by the quasi judicial authority in exercising powers under Section 136(2) of Karnataka Land Revenue Act is not sustainable, particularly having regard to the facts and circumstances of the present case.
8. In view of the above, these writ petitions are allowed. Impugned order is set aside. Assistant Commissioner is directed to hear both parties on the application filed seeking condonation of delay. If the Assistant Commissioner is persuaded to condone the delay, then he has to consider the application filed seeking grant of interim stay. If the delay is not condoned, then question of considering the application for stay does not arise.
Writ petitions are accordingly disposed of with the above direction.
Learned AGA is permitted to file his memo of appearance within three weeks.
Sd/- JUDGE KMV*/psg*