B. Bhadragiri Gowda vs The State of Karnataka and Others

V.G. Sabhahit, J.—This writ petition is filed being aggrieved by the order passed by the Deputy Commissioner, Bangalore District dated 5.5.2003 dismissing the revision and confirming the order passed by the Assistant Commissioner, Ramanagaram sub-division, Ramanagaram dated 28.6.2002.

It is the case of the petitioner that ME.No. 24/88-89 was effected on the basis of the Panchayat parikatha on 8.7.88 However, after the lapse of 14 years, respondents 5 to 7 who are wife and children of respondent No.8 preferred an appeal which was numbered as RA(LKP) 89/2001-02 on the file of the Assistant Commissioner, Ramanagaram sub-division, Ramanagaram and the Assistant Commissioner set aside the order passed by the Tahsildar mutating the name as per ME. No. 24/88-89 and remitted the matter to the Tahsildar by order dated 28.6.2002 and being aggrieved by the same, appeal was preferred before the Deputy Commissioner, Bangalore Rural District, and the Deputy Commissioner in revision by order dated 5.5.2003 dismissed the revision. Being aggrieved by the same, the present writ petition is filed.

The main contention of the petitioner in the writ petition is that, Assistant Commissioner could not have entertained the appeal after the lapse of 14 years and set aside the entry made in ME.No.34/88-89 and no reasons are assigned for condoning the delay and delay is condoned without notice to the petitioners who are respondents before the Assistant Commissioner.

I have heard the Learned Counsel appearing for the petitioner, Learned Counsel appearing for respondents 5 to 7 and 8 and learned HCGP., appearing for respondents 1 to 4.

It is unnecessary to narrate the facts in detail in view of the main contention of the petitioner that order passed by the Assistant Commissioner is unsustainable on the ground that delay has not been condoned after issuing notice to the petitioner. It is clear from the perusal of the order passed by the Assistant Commissioner that entry made in ME.No. 24/88-89 was challenged in the year 2002 and there was delay of 14 years in filing the appeal and the order passed by the Assistant Commissioner shows that he has condoned the delay and thereafter entertained the appeal and issued notice to the respondents and respondents were not notified regarding the condonation of delay in filing the appeal. It is well settled that when there is delay in filing the appeal, the question as to whether sufficient cause has been made out for condoning the delay shall be considered after issuing notice to the respondents and question of condoning the delay even without issuing notice to the respondents and entertaining the appeal and issuing notice in appeal does not arise as the appellate authority would get jurisdiction to decide the appeal on merits only after delay is condoned in accordance with law after notifying the respondents. Under the circumstances, the order passed by the Assistant Commissioner is clearly erroneous and the same has been erroneously confirmed by the Deputy Commissioner and so far as the order passed by the Deputy Commissioner confirming the order passed by the Assistant Commissioner impugned in this writ petition is liable to be set aside and remitted to the Assistant Commissioner for fresh disposal in accordance with law. Accordingly, I pass the following order:

The writ petition is allowed. Order dated 5.5.2003 passed by the Deputy Commissioner, Bangalore Rural District in Revision 25/2002-03 confirming the order passed by the Assistant Commissioner, Ramanagaram sub-division, Ramanagaram dated 28.6.2002 is set aside and the order passed by the Assistant Commissioner, Ramanagaram sub-division dated 28.6.2002 in RA.LKP.89/01-02 is set aside and remitted to the Assistant Commissioner, Ramanagaram sub-Division, Ramanagaram to consider the application for condonation of delay after affording opportunity to the petitioner to file objections to the application for condonation of delay and thereafter if sufficient ground is made out for condoning the delay and dispose of the appeal, in accordance with law. The parties are directed to appear before the Assistant Commissioner, Ramanagaram sub-division, Ramanagaram on 18.12.2006 to seek further instructions.