Lakshmamma vs Deputy Commissioner, Chitradurga District

B.S. Patil, J.—Learned Additional Government Advocate is directed to take notice for respondents 1 & 2.

This writ petition is filed challenging the order dated 08.07.2015 passed by the Deputy Commissioner, Chitradurga.

Petitioners claim to be the legal representatives of the purchaser of the land bearing Sy. No. 137/1 measuring 5 acres situated at Burujanaroppa village, Hiriyur Taluk in Chitradurga District. The said land was originally granted under Dharkasth on 31.01.1950 in favour of the father of the 3rd respondent herein by name Vaddikere Siddappa. The grantee belonged to Scheduled Caste. He sold the property in favour of the father of the petitioners under registered sale deed dated 02.02.1968.

Proceedings were initiated at the instance of the grantee -Siddappa under the provisions of the Karnataka Scheduled Caste and Scheduled Tribe (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, the Act''), before the Assistant Commissioner for restoration of the land contending inter alia that the granted land was sold in violation of the non-alienation condition imposed as per the rules in force.

The Assistant Commissioner vide order dated 29.06.1990 held that there was no violation of the condition of non-alienation and the sale transaction made in favour of the father of the writ petitioners was not hit by the provisions of the Act. It is necessary to notice here that during the pendency of the application before the Assistant Commissioner, grantee -Siddappa died and his legal representatives came on record and prosecuted the application. After the application was dismissed by the Assistant Commissioner on 29.06.1990, 3rd respondent herein did not take any steps to file the appeal or challenge the order in any manner permitted in law. Only in the year 2006-07, he chose to file the appeal before the Deputy Commissioner along with an application seeking condonation of delay. There was a delay of 16 years in filing the appeal.

In the application filed, he sought for condonation of delay contending inter alia that his father had engaged a counsel who had informed the appellant that he need not go on every date of hearing and as and when his presence was necessary, he would be informed; however, the advocate did not inform the progress of the case before the Assistant Commissioner; therefore, he was not aware of the progress of the case and learnt about the dismissal of the application only in the year 2006 when he met his counsel. Therefore, there was delay in filing the appeal.

The purchasers - writ petitioners herein who were arrayed as party respondents before the Deputy Commissioner resisted the appeal and the application filed for condonation of delay.

The Deputy Commissioner has passed the impugned order condoning the delay and setting aside the order passed by the Assistant Commissioner, thereby directing resumption and restoration of land. Aggrieved by the said order passed by the Deputy Commissioner, the present writ petition is filed.

The main contention urged by the learned Counsel for the petitioners is, that the Deputy Commissioner has committed serious illegality in condoning the delay of 16 years in filing the appeal before him and entertaining the same unmindful of the fact that during the interregnum, parties had changed their position to their detriment. It is also urged by the learned Counsel for the writ petitioners that the explanation offered for the long and inordinate delay on the part of the respondents/appellants before the Deputy Commissioner was not at all satisfactory nor it disclosed any bona fides on their part, let alone diligence in filing the appeal and prosecuting the same.

Counsel appearing for the respondent supports the order passed by the Deputy Commissioner and urges that as there was permanent non-alienation clause in terms of the rules in force at that time, the sale made was void and the Deputy Commissioner was right and justified in condoning the delay and passing the impugned order keeping in mind the object of the Act.

Upon hearing the learned Counsel for the parties, I find that the appellate remedy before the Deputy Commissioner provided under the Act is required to be availed within the period of limitation prescribed. The period of limitation prescribed is 90 days. No doubt, the Deputy Commissioner is conferred with discretionary power to condone the delay. The discretion has to be exercised in accordance with law. Even assuming that in matters like this delay has to be liberally construed, question whether delay of 16 years in filing the appeal and challenging the order of the Assistant Commissioner could have been condoned based on the explanation offered by the appellant-respondent herein is required to be examined.

The only explanation offered for the delay of 16 years is that the advocate engaged by the appellant-respondent herein did not inform him about the progress of the case and that he had told him to go and meet him only when he was intimated of the need to approach. This explanation, as is apparent on the face of it, is only given to make up for the negligence on the part of the respondent herein in filing the appeal in time. It is not as if the appellant was not aware of the order passed by the Assistant Commissioner. Admittedly, he was aware of the order passed by the Assistant Commissioner, because he was impleaded as a party before the Assistant Commissioner upon the death of his father. It cannot take 16 years for him to contact his lawyer even though he had asked not to repeatedly approach and contact him only when it was necessary. This Court cannot loose sight of the fact that during the period of 16 years party in whose favour the order is passed could have taken steps to alter his position with regard to the land in question.

In the instant case, there was justification for the writ petitioners to rest assured of the fact that litigation had come to an end and consequently deal with the property. The litigation cannot continue indefinitely and the party who is not diligent in approaching the court cannot be rewarded unmindful of its effect on the party in whose favour the order has been passed long ago.

Reliance placed by the learned Counsel for the respondent on the judgment in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , is not apposite to the facts and circumstances involved in this case. In the said case, the dismissal of the appeal filed by the State Government against the decision of the court below substantially enhancing compensation for the land acquired, wherein the important question as regards the principles or valuation had been raised, on the ground that it was barred by time by 4 days was held improper and in that context, the Apex Court has held that when substantial justice deserved to be preferred the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay and that there was no presumption that delay was occasioned deliberately or on account of culpable negligence.

None of the above observations are applicable to the facts of the present case and the conduct of the respondent. 16 years delay could not have been condoned by the Deputy Commissioner by holding that the ''delay was required to be condoned''. Whatever be the merits of the case, delay in the instant case defeats the right of the respondent. Delay of 16 years certainly clothes the writ petitioners with a defence to contend that the Deputy Commissioner could not enter into the merits of the case unless a case was made out for condonation of delay. No case was made out for condoning the delay. Hence, the discretion exercised by the Deputy Commissioner, in the instant case, is totally vitiated. He ought to have dismissed the appeal on the ground of delay only.

Therefore, this writ petition is allowed. The impugned order is set aside.

Learned Additional Government Advocate is permitted to file memo of appearance within three weeks from today.