Allowed

Sri Bhadresh N Desai v. the State of Karnataka

Karnataka HC15 Oct 2019WP/25085/2019

Case brief

AI extract

What is this about?

This court quashed an ex parte interim stay order in a land revenue appeal for lack of notice and lack of power to direct police protection under Section 91 CrPC, remitting the case for disposal after notice.

What did the court decide?

The communication dated 28.05.2019 and the police notice dated 31.05.2019 were quashed. The appellate authority is directed to dispose of the limitation and stay applications expeditiously within 4 we

Sri Bhadresh N Desai Vs the State of Karnataka — Property and Title | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF OCTOBER, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE ARAVIND KUMAR

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W.P. NOs.25085-25088/2019 (KLR-RES)

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BETWEEN:

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1 . SRI. BHADRESH N DESAI S/O LATE NATUBHAI DESAI AGED ABOUT 61 YEARS.

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2 . SMT. GEETA B DESAI W/O SRI. BHADRESH N DESAI AGED ABOUT 58 YEARS.

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3 . SRI. JUGAL DESAI S/O SRI. BHADRESH N DESAI AGED ABOUT 32 YEARS.

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4 . SMT. SMRITI DESAI W/O SRI. JUGALDESAI AGED ABOUT 31 YEARS.

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ALL ARE R/AT NO.885 GOKUL 6^TH CROSS 6^TH BLOCK, KORAMANGALA BANGALURU – 560 095.

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..PETITIONERS

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(BY SRI. LEELADHAR H.P, ADVOCATE)

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AND:

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1 . THE STATE OF KARNATAKA BY ITS PRINCIPAL REVENUE SECRETARY, VIDHANA SOUDHA DR. AMBEDKAR VEEDHI BENGALURU – 560 001.

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2 . THE ASSISTANT COMMISSIONER BENGALURU SOUTH SUB DIVSION BENGALURU, OFFICE AT NO.2^ND FLOOR, KANDAYA BHAVAN KEMPEGOWDA ROAD BENGALURU – 560 009.

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3 . SMT. JANAKAMMA W/O NARAYANA REDDY AGED ABOUT 77 YEARS.

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4 . SRI. BABU REDDY S/O LATE NARAYANA REDDY AGED ABOUT 51 YEARS.

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5 . SRI. PRAKASH REDDY S/O LATE NARAYANA REDDY AGED ABOUT 47 YEARS.

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SL.NO.3 TO 5 ARE R/AT KANAPPANA AGRAHARA VILLAGE, ELECTRONIC CITY POST, BEGUR HOBLI BENGALURU – 560 100.

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6 . NAGARAJ REDDY SON-IN-LAW OF RESPONDENT NO.3 MAJOR IN AGE R/AT.NO.163/1 LAKSMINARASIMHASWAMY NILAYA NANJUNDA REDDY LAYOUT NEAR YELLAMMA TEMPLE KONAPPANA AGRAHARA ELECTRONIC CITY BENGALURU – 560 100.

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7 . THE INSPECTOR OF POLICE PARAPPANA AGRAHARA POLICE STATION BENGALURU CITY – 560 068.

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8 . SRI. S. DAULATH RAM S/O A. SUMMERMAL AGED ABOUT 63 YEASRS R/AT NO.33, B. LAL MASJID STREET, CIVIL STATION BANGALURU – 560 051.

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THE COMMISSIONER BRUHATH BENGALURU MAHANAGARA PALIKE N.R. SQUARE BENGALURU – 560 009.

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THE EXECUTIVE ENGINEER BRUHATH BENGALURU MAHANAGARA PALIKE BOMMANAHALLY DIVISION BENGALURU – 560 009.

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...RESPONDENTS

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(BY SRI. Y.D. HARSHA, AGA FOR R-1, R-2 AND R-7; SRI. JAYAKUMAR S PATIL, SR. COUNSEL A/W SRO. PRUTHVI WODEYAR, ADV., FOR R-3 TO R-6; SRI. K.N. PUTTEGOWDA, ADV., FOR R-9 AND R-10; NOTICE TO R-8 IS DISPENSED WITH)

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THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR ENTIRE RECORDS IN DISPUTE NO.RA(S) 295/2018-19 ON THE FILE OF THE R-2 AND ALSO THE ENTIRE RECORDS FROM THE R-7 REGARDING POLICE NOTICE ISSUED UNDER SECTION 91 OF THE CR.P.C.

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THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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These writ petitions are filed calling in question the correctness and legality of orders dated 27.11.2018, 28.05.2019 and 31.05.2019-Annexures-A, B-1 and B respectively passed by second respondent whereunder second respondent while considering the appeal filed under Section 49/136(2) of Karnataka Land Revenue Act, 1964, has granted interim stay of operation of the order under challenge namely has stayed the operation of mutation entries of MR No.15/1991-92 and MR No.2/1974-75. Pursuant to order of stay passed, second respondent by communication dated 28.05.2019–Annexure-B-1 has intimated respondent No.7 to extend police protection. Thereafter, respondent No.7 has issued a notice to the petitioners under Section 91 of Cr.P.C. dated 31.05.2019 – Annexure-B. Hence, this writ petition for quashing the same.

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Heard Sri. H.P.Leeladhar, learned counsel appearing for petitioners, Sri. Jayakumar S. Patil,

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learned Senior Counsel appearing on behalf of respondent Nos.3 to 6, Sri.Y.D.Harsha, learned AGA appearing for respondent Nos.1, 2 and 7 and Sri.K.N.Puttegowda, learned counsel appearing for respondent Nos.9 and 10. Notice to respondent No.8 is dispensed with, since in pending R.A.No.295/2018-19 respondent No.8 herein has been arrayed as respondent No.2 in said appeal and he is yet to be served and no order adverse to his interest is being passed in the present writ petitions.

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It emerges from the records that essential dispute between the parties revolves around mutation entry made by revenue authorities in respect of land bearing Sy.No.5/1 measuring 20 guntas situated at Beretena Agrahara Village, Begur Hobli, Bangalore South Taluk, which entry was said to have been standing in the name of petitioners at an undisputed point of time and same having been challenged by respondent Nos.3 to 5 by filing an appeal i.e., R.A.No.295/2018-19. Said appeal had been filed

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challenging MR No.15/1991-92 and MR No.2/1974-75 was also accompanied by an application filed under Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing the appeal if at all there was delay and also contending there was no delay. This fact is also evident from the plea put forward by appellants i.e., respondent Nos.3 to 5 herein in the appeal memorandum at paragraph 15 whereunder they have contended appeal is on time and if the date of knowledge of said order is reckoned, and at the same time, they have also stated that application for condoning delay if any is also filed.

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The mutation entries which is under challenge before Assistant Commissioner is of the year 1974-75 and 1991-92. Prima facie it would indicate the year in which said entries have been made. As to whether said entries have been effected on the said dates or not, is an issue which will have to be resolved or adjudicated by the appellate authority in pending appeal and any opinion expressed by this Court in this

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regard at this stage would definitely prejudice the rights of parties. Hence, no opinion is expressed on said contentions though raised as it is disputed question of fact. It is left open to be considered by the appellate authority.

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However, prima facie records would disclose that order or mutation entries have been carried out/entered in the year 1974-75 and 1991-92 respectively and as such appeal filed is beyond the period prescribed under Section 51 of the Karnataka Land Revenue Act, 1964. Hence, said application will have to be examined by the appellate authority and finding has to be given by said authority for either condoning the delay or rejecting the cause shown for delay in filing the appeal. Even before notice could have been issued on the said appeal, an exparte interim order of stay came to be passed on 27.11.2018. Since the issue regarding delay is to be adjudicated, appeal which has been filed would not be an appeal in the eye of law or in other words, till delay is condoned, appeal

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cannot be taken up on merits or any other order passed before consideration of application for condonation of delay. In the instant case, appellate authority without even issuing notice on the application for condonation of delay to the contesting respondents namely, writ petitioners herein, has passed the exparte interim order of stay and as such it is not sustainable in law.

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In fact, limitation for filing the appeal as prescribed under Section 51 of Karnataka Land Revenue Act, 1964, being 60 days in case of first appeal and appeal in question having been filed under Section 49(1)/136(2), it may part take the character of first appeal and as such it has to be filed within 60 days. In either of contingencies i.e., if appeal is treated as appeal under Section 49, limitation is prescribed under Section 51A of Karnataka Land Revenue Act, 1964 would be attracted and in the event of appeal in question being treated as an appeal filed under Section 136(2), limitation is prescribed under sub-section (2) itself being 60 days, same will have to be examined by

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appellate authority accordingly. Thus, it is for the appellate authority to adjudicate the same. However, before taking such recourse i.e., considering the issue of inordinate delay, appellate authority has granted exparte interim stay. Such recourse taken by the appellate authority is not sustainable and as such impugned order dated 27.11.2018 is liable to be set aside.

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Consequential steps taken by the Assistant

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Commissioner in the instant case seems to be overzealous. Appellate authority seems to have undertaken the exercise of executing the order of stay passed by it by not only overstepping its limits, but also there being no power available to it under Karnataka Land Revenue Act to direct the jurisdictional police to extend police protection for implementation of an exparte interim order of stay. As such said communication dated 28.05.2019–Annexure-B-1 addressed by second respondent to respondent No.7 is also not sustainable.

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It is based on above said communication

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dated 28.05.2019 (Annexure-B-1) jurisdictional police by purported exercise of power under Section 91 of Cr.P.C. has issued notice to petitioners enclosing the interim order of stay passed on 27.11.2018 in R.A.No.295/2018 for being complied by petitioners. When it is already held hereinabove that second respondent-appellate authority does not have the power

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to direct the jurisdictional police to implement the interim order of stay and consequential communication issued by respondent No.7 i.e., jurisdictional police to petitioners herein under notice dated 31.05.2019Annexure-B would also be not sustainable.

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For the reasons aforestated, I proceed to pass the following:

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ORDER

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dated 28.05.2019 (Annexure-B-1) issued by second respondent to respondent No.7 and police notice dated 31.05.2019 (Annexure-B) issued under Section 91 of Cr.P.C. by respondent No.7 to petitioners are quashed.

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(iii) Second respondent-appellate authority before whom R.A.No.295/2018-19 is pending, at the first instance, shall dispose of the application filed under Section 5 of the Limitation Act along with application for stay filed by appellants therein by hearing the arguments of parties or their respective learned Advocates, expeditiously and at any rate within four (4) weeks from the next date of hearing, which is fixed as 30.10.2019 , on which date both petitioners and respondent Nos.3 to 6

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shall appear before second respondent-appellate authority without waiting for further notice.

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(iv) Both parties shall cooperate with appellate authority in disposing of the appeal, expeditiously and at any rate within three (3) months from the date of order passed on application for condonation of delay and application for stay and in the event of appellate authority allowing the application for condonation of delay.

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In view of writ petitions having been allowed, I.A.No.2/2019 for vacating stay does not survive for consideration and it stands rejected.

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SD/JUDGE

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Sri Bhadresh N Desai v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Bhadresh N Desai v. the State of Karnataka

Case brief

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