M. Chikkanna and Others vs Mysore Urban Development Authority

B.S. Patil, J—This revision petition is directed against the order dated 24.08.2013 passed by the learned Principal District & Sessions Judge, Mysore, thereby allowing I.A. No. 1 filed under Section 5 of the Limitation Act by the defendant - Mysore Urban Development Authority (MUDA) respondent herein and condoning the delay of nearly 4 years 1 month in filing R.A. No. 105/2012 against the judgment and decree dated 11.12.2007 passed in O.S. No. 325/2004.

R.A. No. 105/2012 was filed by the defendant MUDA - challenging the judgment and decree dated 11.12.2007 passed in O.S. No. 325/2004. The said suit was filed by the plaintiffs - revision petitioners herein seeking a declaration that they were entitled for grant of 17 guntas of land with a direction to the MUDA to deliver vacant possession of the same to them. Plaintiffs had sought for such a relief on the ground that an extent of 17 guntas of land comprised in Sy. No. 250/1B of Hebbal Village, Mysore City belonged to them being their ancestral property and had been made use of for formation of road by the MUDA without acquiring the same in accordance with law and paying compensation to them. The said suit was resisted by MUDA. The fact that MUDA had formed a road in the land of the plaintiff was admitted by the MUDA. It was, however, contended that a notification was issued on 31.12.1987 notifying the land for acquisition and that the plaintiffs had not challenged the said notification and therefore, once the Government notified the land, then the civil Court would no get any jurisdiction to try the issue.

It is relevant to notice here that it was not the case of MUDA that the land had been acquired by issuing final declaration or that award had been passed and that the land had thus stood vested in the State on account of acquisition. Therefore, the fact remains that admittedly the land was utilized for formation of road, but without resorting to acquisition proceedings. To this extent, evidence was led by the plaintiffs. Defendant - MUDA did not lead any evidence. Therefore, the Trial Court passed the decree declaring the entitlement of the plaintiffs to secure 17 guntas of land from the defendant MUDA and directing the MUDA to handover possession of 17 guntas of land to the plaintiffs to compensate for the loss sustained by them.

This judgment and decree passed by the Trial Court was not challenged for nearly 4 years 1 month. Only on 16.02.2012, RA. No. 105/2012 was filed along with an application seeking condonation of delay. In the affidavit filed in support of the said application, one C.G. Betsurmutt, one of the officials of MUDA, has stated that due to huge work of the MUDA, his predecessor in office did not file the appeal and also due to transfer of officials, the matter was not noticed for preferring the appeal and unfortunately, the entire file was misplaced and therefore, appeal was filed after the missing file was traced ''recently''. In paragraph 3 of the affidavit, it is stated that due to official correspondence and improper co-ordination, on behalf of MUDA, defence evidence was not adduced and the property in question was a public property. Except these averments, there is no other explanation offered for the inordinate delay of 4 years 1 month in preferring the appeal.

Plaintiffs filed objections to the LA. and contended specifically that after the decree was passed on 11.12.2007, plaintiffs brought the same to the notice of the defendant - MUDA on number of occasions and an application dated 31.03.2008 was filed enclosing the copy of the judgment and decree before the defendant - MUDA. It is further asserted in the objections that by letter dated 15.02.2008 signed by the Special Land Acquisition Officer, an order was passed directing the MUDA to redeliver an extent of 17 guntas of land to the 1st plaintiff on the basis of the judgment and decree passed on 11.12.2007. It was, therefore, contended that the MUDA was fully aware of the judgment and decree passed by the Trial Court and the averments made in the affidavit regarding misplacement of the records etc., were false and baseless.

In support of the prayer for condonation of delay, defendant - MUDA led evidence. Plaintiffs - revision petitioners also led evidence and produced Exs. D1 to D5. The lower Appellate Court has allowed the LA. and condoned the delay by holding that though undoubtedly there were lapses and omissions on the part of the officials of MUDA, but as public interest was involved and the file had to be moved from one Section to another Section and because of lack of coordination of various departments of Government undertaking, different yardstick for condoning the delay had to be employed. It is this order that is challenged before this Court.

I have heard the learned counsel for both parties.

Learned Counsel for the revision petitioners submits that there was absolutely no explanation offered for the long and inordinate delay of 4 years 1 month and therefore, learned District Judge had seriously erred in entertaining the application and condoning the delay. He submits that even if ends of justice is kept in mind, the fact remains that plaintiffs had lost their valuable land without acquiring the same and paying compensation and therefore, based on the evidence on record, the Trial Court had decreed the suit directing the MUDA to redeliver an equal extent of land to the plaintiffs, but the lower Appellate Court was wrong in condoning the inordinate delay.

Learned counsel for the respondent MUDA placing reliance on two judgments of the Apex Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, AIR 1987 SC 1353 : (1987) 13 ECC 27 : (1988) 19 ECR 565 : (1987) 28 ELT 185 : (1987) 167 ITR 471 : (1987) 1 JT 537 : (1987) 1 LLJ 500 : (1987) 1 SCALE 413 : (1987) 2 SCC 107 : (1987) 2 SCR 387 : (1987) 66 STC 228 : (1987) 2 UJ 29 and State of Nagaland Vs. Lipok AO and Others, AIR 2005 SC 2191 : (2005) 100 CLT 111 : (2005) 183 ELT 337 : (2005) 4 JT 10 : (2005) 3 SCC 752 : (2005) 1 SCR 108 : (2005) 1 UJ 648 : (2005) AIRSCW 1748 : (2005) 3 Supreme 107 submits that yardstick for condoning the delay where the appellant seeking condonation of delay is a public undertaking or a Government body would be different and therefore, keeping in mind the public interest learned District Judge was right and justified in condoning the delay.

Having carefully considered the pleadings, evidence on record and the order under challenge as also the judgments relied upon, it is clearly discernable from the materials on record, particularly the explanation offered seeking condonation of delay of 4 years 1 month in filing the Regular Appeal that there was absolutely no attempt made to explain the inordinate delay. Explanation offered stating that the file was misplaced and was traced ''recently'' is as bald as it could be, apart from being not probabilised or proved by the materials placed on record.

I find that the objection filed clearly disclosed that the plaintiffs had approached the MUDA producing copy of the judgment with an application as back as on 31.03.2008. Indeed it is asserted in the objection statement that an order was passed by the Land Acquisition Officer to handover 17 guntas of land pursuant to the decree passed and a letter was addressed in this regard as back as on 15.02.2008 which clearly meant that the factum of passing of the judgment and decree by the Trial Court had been brought to the notice of the MUDA. Therefore, explanation offered stating that the file had been misplaced and that ''recently'' it was traced and therefore, delay may be condoned in public interest cannot be accepted.

It is true when the public undertaking or a Government body comes up with a public cause, the matter has to be viewed liberally while condoning the delay, but in the instant case, by keeping the principles enunciated in the judgment in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, AIR 1987 SC 1353 : (1987) 13 ECC 27 : (1988) 19 ECR 565 : (1987) 28 ELT 185 : (1987) 167 ITR 471 : (1987) 1 JT 537 : (1987) 1 LLJ 500 : (1987) 1 SCALE 413 : (1987) 2 SCC 107 : (1987) 2 SCR 387 : (1987) 66 STC 228 : (1987) 2 UJ 29 , later on confirmed in the judgment in the case of State of Nagaland Vs. Lipok AO and Others, AIR 2005 SC 2191 : (2005) 100 CLT 111 : (2005) 183 ELT 337 : (2005) 4 JT 10 : (2005) 3 SCC 752 : (2005) 1 SCR 108 : (2005) 1 UJ 648 : (2005) AIRSCW 1748 : (2005) 3 Supreme 107 , if the matter is examined, no substantial injustice would result due to the refusal to condone such inordinate delay. Substantial injustice would result to the plaintiffs whose land has been illegally taken over and who are deprived of the benefit of the same for several years, if the order passed by the learned District Judge condoning the delay of 4 years 1 month is upheld. Therefore, even if the principles of equity, justice and fair play are kept in mind, this is not a case where public interest would be sacrificed, if this Court interferes. This is a case where the land owner who has lost his land has got justice in the form of a decree passed by the Trial Court directing the MUDA to redeliver equal extent of land in lieu of the land that has been made use of by it, without acquiring and paying compensation to the plaintiffs. Hence, I am of the clear view that the learned District Judge has seriously erred in condoning the inordinate delay. Hence, exercise of the jurisdiction of the Court below is illegal and has resulted in injustice.

Therefore, this revision petition deserves to be and is allowed. Impugned order is set aside. Consequently, appeal R.A. No. 105/12 is dismissed.