G. Satish vs Narasamma

K.L. Manjunath, J.—These appeals are preferred by the appellants aggrieved by the order passed in W.P. No. 29522/2004, dated 04.07.2011.

Heard the learned counsel appearing for the parties.

The facts leading to these appeals are as hereunder:

It appears two acres of land in Survey No. 11 of Pattanagere Village, Kengeri Hobli, Bangalore South Taluk was granted in the year 1939-40 in favour of one Smt. Narasamma, who belonged to Scheduled Caste under a sale deed dated 23.02.1972. The said Smt. Narasamma sold the aforesaid extent of land in favour of one G. Satish, son of Gundaraj on 23.09.1981. Smt. Narasamma had filed an application for restoration of the aforesaid land on the ground that the sale made by her in favour of respondent no. 4 was contrary to the provisions of the Karnataka SC/ST (Prohibition of Transfer of Certain Lands) Act, 1978 before the Assistant Commissioner, Bangalore South Sub-Division. The application filed by Smt. Narasamma for restoration of the land came to be rejected by the third respondent by an order dated 08.04.1985.

Smt. Narasamma during her lifetime did not challenge the order passed by the Assistant Commissioner. Thereafter in the year 2004, the legal representatives of Smt. Narasamma filed an appeal before the Deputy Commissioner, Bangalore in Case No. Appeal. K.S.C.S.T. No. 7/2004, with a delay of 18 years. The Special Deputy Commissioner, Bangalore by its order dated 08.06.2004, issued an endorsement stating that the appeal preferred by the legal representatives of Smt. Narasamma cannot be entertained on account of the inordinate delay of 18 years. Accordingly, he dismissed the appeal.

Aggrieved by the dismissal of the appeal, the legal representatives of Smt. Narasamma filed a Writ Petition No. 29522/2004 requesting the court to quash Annexure-A, the endorsement dated 08.06.2004 issued by the Special Deputy Commissioner on the ground that the endorsement issued by the Deputy Commissioner is in contravention to the principles of natural justice and that the legal representatives were not heard before rejecting the appeal and the application filed to condone the delay of 18 years and further requested the court to direct the Special Deputy Commissioner to dispose of the appeal and the application for condonation of delay on merits and in accordance with law, after giving full opportunity to the writ petitioners.

Though the prayer of the writ petitioners before the learned Single Judge was to quash the endorsement dated 08.06.2004 as illegal as the same has been passed without hearing the writ petitioners and the application for condonation of delay was rejected without giving reasonable opportunity to the petitioner. Contrary to the prayer made by the writ petitioner in the writ petition, the learned Single Judge traversing beyond the scope of the writ petition allowed the writ petition and set-aside the order of the Assistant Commissioner dated 08.04.1985 and also the endorsement issued by the Special Deputy Commissioner dated 08.06.2004 and directed the authorities to restore the land in favour of the writ petitioner by holding that the sale made in favour of the respondent no. 4, by Smt. Narasamma in the year 1972 was contrary to the grant. Aggrieved by the same, the present appeals are filed.

In these appeals about 13 applications are filed. Out of which, 12 applications are filed for impleading. According to these applicants, they have purchased different portions of the land which was sold by Smt. Narasamma in favour of respondent no. 4 and that they are in possession of the property and that the order passed by the learned Single Judge so also the Special Deputy Commissioner would take away their rights. Therefore, these applications are filed to implead them and come on record.

Since these appeals are filed by the persons who are affected and as there is no conflict of interest between the appellants and the impleading applications, we are of the considered view that there is no necessity for us to consider these applications at this stage. If necessity arises, these applicants can approach the authorities at an appropriate time. Accordingly, no orders are passed on these applications and these applications are to be considered as disposed off.

The main contention of the learned counsel for the appellants are as hereunder:

When the writ petitions are filed by the writ petitioners, stating that I.A. filed by them before the Special Deputy Commissioner to condone the delay of 18 years has been disposed off by issuing an endorsement dated 08.06.2004, without hearing them and their Advocate and when a specific request was made to remand the matter to the Special Deputy Commissioner, Bangalore to rehear the petitioners and dispose off the applications and the appeal on merits, the learned Single Judge has committed an error in allowing the petitioner on the ground that when the sale made by Smt. Narasamma in favour of respondent no. 4 is in violations of the conditions of the grant in view of the Section-4 of the Act, there was no necessity for the Special Deputy Commissioner to have considered the delay application and allow the delay application. According to the learned Single Judge, when no law of limitation is applicable to make an application for restoration of the land, the Special Deputy Commissioner was required to condone the delay and allow the appeal. Therefore, the learned counsel for the appellant submits that even though the law of limitation is not applicable for the restoration of the land still the Hon''ble Supreme Court time and again has ruled that within a reasonable time such application for restoration of the land has to be filed and that the learned Single Judge exceeding his jurisdiction has granted the order. Therefore, they request the court to quash the order passed by the learned Single Judge.

Alternatively, they contend that even though there is no limitation prescribed under the Act to file an application for restoration of the land, the appeal has to be filed before the Special Deputy Commissioner within a period of 3 months. Since the appeal was filed beyond the period of limitation, the learned Single Judge could not have allowed the writ petition.

According to him, without considering the law of limitation applicable to the appeal filed by the writ petitioners before the Special Deputy Commissioner, the learned Single Judge shall not have allowed the writ petition ordering to restore the land, which according to him is an error committed by the learned Single Judge.

According to Sri. M.H. Sowkar, learned counsel appearing for the respondents/writ petitioners submits that the order of the learned Single Judge does not suffer from any illegality or irregularity and no error is committed. According to him, when no of law of limitation is applicable to file an application for restoration of the land on account of violation of conditions of grant, the learned Single Judge is justified in granting the relief. Therefore, he requests the court to dismiss the appeal.

Having heard the learned counsel for the parties, we have to consider the following points in these appeals:

i. Whether the learned Single Judge is justified in restoring the land when the appeal filed by the writ petitioners had not even considered by the Deputy Commissioner on merits and in accordance with law?

ii. Whether an error is committed by the learned Single Judge in order to interfere with the same?

Though the learned counsel for the respondents/writ petitioners contend that the learned Single Judge has not committed an error in granting relief, he is unable to dispute that an appeal is required to be filed before the Special Deputy Commissioner within three months from the date of the order. In the instant case, the application filed by Narasamma for restoration came to be rejected by the Assistant Commissioner on 08.04.1985 and that she did not file an appeal before the Special Deputy Commissioner within three months and the appeal came to be filed by her legal representatives on 13.07.2004, nearly 19 years after the rejection of the application filed by Narasamma. When there was a delay of 19 years in filing the appeal, the Special Deputy Commissioner issued an endorsement stating that the appeal filed by the Legal representatives of Narasamma cannot be entertained on account of delay. The endorsement reads as hereunder:

The Appeal is preferred under Section-5A, of PTCL Act Challenging the order bearing No. S.C.S.T.104/79-80, DATED 8.4.1985 passed by the Assistant Commissioner, Bangalore Sub-Division. On considering the said Appeal it is made known that the said Appeal has been preferred after the lapse of 18 years from the date of the order passed by the lower court. Hence, it is not possible to condone the inordinate delay in filing the appeal. Hence, the appeal stand dismissed.

Special Deputy Commissioner Bangalore District

This order was questioned by the legal representatives before the learned Single Judge contending that the endorsement has been issued without hearing them and that the application filed for condonation of delay and the appeal filed by them has to be reconsidered and reheard by the Special Deputy Commissioner.

On perusal of the endorsement vide Annexure-A to the writ petition, we are of the view that summarily the appeal has been rejected by the Special Deputy Commissioner on the ground that there was a delay of 19 years in filing the appeal. The Special Deputy Commissioner was required to hear the learned counsel appearing for the writ petitioner and thereafter he was required to pass considered order for rejection of the application filed under Section- 5 of the Limitation Act. It is no doubt true that an error was committed by the Special Deputy Commissioner in issuing such endorsement without hearing the parties or their counsels, but the fact remains in this appeal is that the learned Single Judge without quashing the endorsement vide Annexure-A dated 08.06.2004, and remand the matter to Special Deputy Commissioner for reconsideration of the application filed under Section- 5 of the Limitation Act has allowed the writ petition granting relief to the writ petitioner, which was not sought for by them, on the premise that when limitation is not prescribed to file an application for restoration of land, the writ petitioners are entitled for the relief. The procedure adopted by the learned Single Judge is unknown to all canons of law, because when a law of limitation is applicable to file an appeal it was for the learned Single Judge to consider whether the order passed by the Special Deputy Commissioner was in accordance with law or not. If the learned Single Judge was of the view that the order passed by the Special Deputy Commissioner was contrary to the provisions of law and against the principles of natural justice, he was required to allow the writ petition and remand the matter to the Special Deputy Commissioner for fresh consideration in accordance with law. Without doing so, he has straight away ordered to restore the land and directed the Special Deputy Commissioner to restore the land to the legal representatives of Narasamma, which procedure is unknown and unheard to law.

Whether the legal heirs are entitled to succeed in the appeal or not was not the point for consideration before the learned Single Judge and the same had to be considered by the Special Deputy Commissioner in accordance with law. Therefore, we are of the view that an error is committed by the learned Single Judge in allowing the writ petition straight away in ordering restoration of the land under Section- 4 of the Act. In the circumstances, the appeal is allowed the order passed by the learned Single Judge in W.P. No. 29522/2004, dated 04.07.2011 is set-aside.

Consequently, the endorsement vide Annexure-A dated 08.06.2004, issued by the Special Deputy Commissioner is quashed since the said endorsement is issued without hearing the legal representatives of Smt. Narasamma or their counsels.

In the result, these appeals are allowed. The matter is remanded to the Special Deputy Commissioner, Bangalore to consider the appeal filed by the legal representatives of Smt. Narasamma in accordance with law after issuing notice to all the parties and if necessity arises allow the purchasers who are in possession of the property to come on record as additional respondents. It is for the Deputy Commissioner at the first distance to hear the parties on the application filed for condonation of delay and pass order in accordance with law. It is also for the Deputy Commissioner to hear the appeal on merits only if the delay of nineteen years is condoned otherwise appeal has to be dismissed by considering the application filed to condone the delay.