Dismissed

The State of Karnataka v. Sri. T. Mallesh

Karnataka HC16 Sept 2020WA/874/2015

Case brief

AI extract

What is this about?

The Division Bench dismissed the application for condonation of delay in filing writ appeals by the State. Relying on Supreme Court precedents, the court held that the State failed to offer a cogent explanation for the 336-day delay and the excuse of missing records was not accepted.

What did the court decide?

The application for condonation of delay of 336 days in filing writ appeals is dismissed and the writ appeals stand dismissed.

The State of Karnataka Vs Sri. T… — Constitutional and Fundamental Rights | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 16^TH DAY OF SEPTEMBER, 2020

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA

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AND

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THE HON’BLE MR. JUSTICE RAVI V.HOSMANI

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WRIT APPEAL No.456 OF 2015 (LA-RES) c/w WRIT APPEAL NO.874 OF 2015 (LA-RES)

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IN W.A. NO.456 OF 2015:

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BETWEEN:

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THE DEPUTY COMMISSIONER, HASSAN DISTRICT, HASSAN

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THE ASSISTANT COMMISSIONER -CUM- LAND ACQUISITION OFFICER, HASSAN SUB-DIVISION, HASSAN-573 201.

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THE STATE OF KARNATAKA, DEPARTMENT OF REVENUE, M.S. BUILDING, VIDHANA VEEDHI, BENGALURU-560 001. REPRESENTED BY ITS THE PRINCIPAL SECRETARY. ... APPELLANTS

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(BY SRI. A.C.BALARAJ, ADDITIONAL GOVERNMENT ADVOCATE)

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AND:

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M.R.SUDESH S/O M.L. RAMACHANDRA SHETTY, AGED ABOUT 52 YEARS, RESIDING AT FORT, HOLENARASIPURA TOWN, HASSAN DISTRICT.

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V. SRINIVASA SHETTY, S/O R. VENKATA KRISHNA SHETTY, AGED ABOUT 65 YEARS, RESIDING AT PETE, HOLENARASIPURA TOWN, HASSAN DISTRICT-573 211.

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SMT. H. VISHALAKSHI, W/O HANUMANTHA KUMAR, AGED ABOUT 59 YEARS, RESIDING AT PETE, HOLENARASIPURA TOWN, HASSAN DISTRICT-573 211.

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SMT. A. NALINA, W/O ASHOK KUMAR, AGED ABOUT 55 YEARS, RESIDING AT PETE, HOLENARSIPURA TOWN, HASSAN DISTRICT.

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SMT. VEENA SATISH, W/O S. SATISH, AGED ABOUT 47 YEARS, RESIDING AT PETE, HOLENARASIPURA TOWN, HASSAN DISTRICT.

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S. NAGENDRA GUPTA, S/O M.N. SUBBARAIAH SHETTY, RESIDING AT PETE, HOLENARASIPURA TOWN, HASSAN DISTRICT-573 211.

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K. MOHAN BABU, S/O H.K. KANDERAYA SHETTY, AGED ABOUT 59 YEARS, RESIDING AT PETE, HOLENARASIPURA TOWN, HASSAN DISTRICT.

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H.J. RAVI, S/O H.K. JANARDHANA SHETTY, AGED ABOUT 56 YEARS, RESIDING AT PETE, HOLENARASIPURA TOWN, HASSAN DISTRICT-573 211.

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H.R.ANANTHA, S/O H.L. RANGAPPA SHETTY, AGED ABOUT 60 YEARS, RESIDING AT PETE, HOLENARASIPURA TOWN, HASSAN DISTRICT-573 211.

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SUBBAKRISHNA MURTY, S/O K.S. NAGARAIAH SHETTY, AGED ABOUT 66 YEARS, RESIDING AT PETE, HOLENARASIPURA TOWN, HASSAN DISTRICT-573 211.

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MUJEEBULLA, S/O GHOUSE MOHIYUDDIN, AGED ABOUT 55 YEARS, RESIDING AT MASJID ROAD, PETE, HOLENARASIPURA TOWN, HASSAN DISTRICT-573 211.

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R. RAMESH S/O LATE K.N. RAMASHETTY, AGED ABOUT 60 YEARS, HOLENARASIPURA, HASSAN DISTRICT-573 211. ... RESPONDENTS

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(BY M/S. ASHOK HARANAHALLI ASSOCIATES, ADVOCATES FOR RESPONDENT NOS.1 TO 12)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NOS.49229 AND 49311-49321 OF 2012 DATED 04.02.2014.

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IN W.A. NO.874 OF 2015:

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BETWEEN:

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THE STATE OF KARNATAKA, DEPARTMENT OF REVENUE, M.S. BUILDING, VIDHANA VEEDHI, BENGALURU-560 001. REPRESENTED BY ITS THE PRINCIPAL SECRETARY.

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THE DEPUTY COMMISSIONER, HASSAN DISTRICT, HASSAN-573 201.

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THE ASSISTANT COMMISSIONER -CUM- LAND ACQUISITION OFFICER, HASSAN SUB-DIVISION, HASSAN-573 201. ... APPELLANTS

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(BY SRI A.C. BALARAJ, ADDITIONAL GOVERNMENT ADVOCATE)

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AND:

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R1. SRI. T. MALLESH, S/O LATE THIMMEGOWDA, HOLENARASIPURA TOWN, HASSAN DISTRICT-573 211. (SINCE DECEASED BY HIS LRS)

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R1. A) SRI. GIRISH M S/O LATE MALLESH T.

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B) M.PARVATHI D/O LATE MALLESH T

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C) H.M.USHA D/O LATE MALLESH T

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D) M.LAXMI D/O LATE MALLESH T

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ALL ARE R/AT EDIGARA BEEDI, WARD NO.8, KASAB HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT.

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(AMENDED VIDE COURT ORDER DATED 16.03.2020) ... RESPONDENTS

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(BY SRI. S.SUBHASH, ADVOCATE FOR R1(A TO D))

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.51899/2012 DATED 04.02.2014.

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THESE APPEALS COMING ON FOR PRELIMINARY HEARING THIS DAY, NAGARATHNA J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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There is a delay of 336 days in filing these appeals.

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It is further noted that W.A.No.456/2015

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arises out of W.P.Nos.49229 and 49311 to 49321 of 2012. While W.A.No.874/2015 arises out of W.P.No.51899/2012. The appellants have filed a common memorandum of writ appeal. However, these appeals arise from two different sets of writ petitions as noted above. However, the cause list has indicated only W.A.No.456/2015, but this

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judgment is in respect of both W.A.No.456/2015 as well as W.A.No.874/2015. The same be noted by the Registry.

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Learned Additional Government Advocate has

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drawn our attention to the application filed seeking condonation of delay of 336 days in filing the appeals. He submitted that although the impugned order was passed by the learned Single Judge on 04.02.2014, application for certified copy of the order was submitted soon thereafter on 06.02.2014. The certified copy of the impugned order of learned Single Judge was received on 12.02.2014. Learned Additional Government Advocate gave his opinion on 28.02.2014 and thereafter, the head of the Legal Cell thought it fit to file the appeals and issued Government Order dated 06.05.2014 authorizing the Government Advocate to prefer the writ appeals. The Government Order was received by the office of the Advocate General on 08.05.2014 and the file was placed before the concerned Law Officer for drafting the grounds of writ appeals on 15.05.2014. Thereafter, the appeals were filed

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on 12.02.2015. Learned Additional Government Advocate submitted that the reason for the delay in filing the appeals was with regard to the need being felt by the concerned Law Officer for certain documents and records pertaining to the acquisition in question and the records could not be traced immediately. Therefore, after securing the records, the Writ Appeals were drafted and filed before this Court. He submitted that the delay in presenting the writ appeals had occurred due to bona fide and unintentional reasons. It was due to administrative reasons and the same may be condoned as the appellant – State has a good case on merits.

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Per contra , learned senior counsel for

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respondents submitted through video conference that the gross delay of 336 days in filing the appeals may not be condoned as there is no explanation whatsoever given between the period 28.02.2014 to 06.05.2014 and after 15.05.2014 for the delay in filing the appeals. He submitted that Hon’ble Supreme Court in the case of

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Postmaster General and Others vs. Living Media India Limited and Another reported in (2012) 3 SCC 563 ( Postmaster General ) has categorically observed that the Government department cannot be shown any indulgence in condoning the huge delay in filing appeals or petitions. That the said departments must ensure that appeals are filed in time or give cogent reasons sufficient in law for seeking condonation. He also referred to another judgment of the Hon’ble Supreme Court in the case of State of Uttar Pradesh Through Executive Engineer and another v. Amar Nath Yadav reported in (2014) 2 Supreme Court Cases 422 , wherein placing reliance on its earlier judgment in the case of Postmaster General (supra) delay was not condoned. He submitted that the delay may not be condoned in these cases as the huge delay of 336 days has not been explained.

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We have considered the rival submissions in

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light of the application filed under Section 5 of the

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Limitation Act, 1963. The relevant paragraphs of the application read as under:

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“3. It is submitted that the impugned order was passed on 4.2.2014 and the application for the Certified Copy of the Order was made on 6.2.2014. The Certified Copy of the order was delivered on 12.2.2014. The learned Govt. Advocate forwarded the Certified Copy of the order along with his opinion dt. 28.2.2014 to the Head of the Legal Cell stating that this is a fit case to file Writ Appeal. Head of the Legal Cell issued necessary Govt. Order dt. 6.5.2014 authorising the Govt. Advocate to prefer Writ Appeal before the Division Bench of the Hon’ble High Court.

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It is submitted that the said Govt. Order was received in the Office of the Advocate General on 8.5.2014. The said file was placed before the concerned Law Officer for drafting the grounds of Writ Appeal on 15.5.2014. Since there are two set of writ petitions filed by two set of petitioners and in one set of writ petition, the petitioner though served with notice

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remained unrepresented before the Land Acquisition Officer during 5-A enquiry and in this regard, the records relating to that petition were to be secured and verified, the concerned officer was asked to bring the original records pertaining to 5-A enquiry. Though several correspondence were made and since the original records pertaining to 5-A enquiry were mixed up with some other records, the relevant records could not be traced immediately and I had reported for duty as Assistant Commissioner, Hassan Sub Division only on 21.01.2015. After securing the entire original records, the above Writ Appeal was drafted and filed before this Hon’ble Court. The delay in preferring the present Writ Appeal is for the bona fide administrative reasons stated above and the same is unintentional.”

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On perusal of the same, it is noted that the Government order was passed on 06.05.2014 authorizing

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filing of appeals against the impugned order of the learned Single Judge dated 04.02.2014. No explanation as to what

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transpired from 28.02.2014 to 06.05.2014 has been offered. The file was placed before the concerned Law Officer on 15.05.2014, till 12.02.2015, no appeal was filed on behalf of the State. It is stated that certain records were necessary to file the appeals which could not be traced and therefore, there is a delay in drafting and filing the appeals.

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Having perused the aforesaid reasons, we

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observe that the aforesaid delay has not been explained categorically or explicitly. The explanation offered is vague and not concrete and is lacking in material particulars. In fact, from 28.02.2014 till 06.05.2014, no explanation is

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offered. Also from 15.05.2014 till 12.02.2015 i.e., for a period of nine months, the writ appeals were not filed and there is no explanation sufficient in law which could be accepted in the instant cases. In the case of Postmaster General (supra) , the Hon’ble Supreme Court has observed that though a liberal view of the matter must be taken in order to advance substantial justice, having regard to the

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facts of the case, the Department cannot take advantage of the said view or attitude of the Court. That the law of limitation undoubtedly binds everybody, including the Government. In paragraph No.29 of the aforesaid judgment, the Hon’ble Supreme Court has observed as under:

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“29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay in an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and

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should not be swirled for the benefit of a few.”

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In the aforesaid case, the Hon’ble Supreme Court observed that the explanation offered by the Department was not acceptable, not cogent and the reasons were not sufficient in law to condone the huge delay and hence, the matter was dismissed on the ground of delay.

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In a subsequent judgment in the case of Amar Nath Yadav (supra), the Hon’ble Supreme Court has referred to paragraph Nos.27 to 30 of the judgment in the case of Post Master General (supra) and has held that the delay had not been explained and hence, dismissed the special leave petition on the ground of delay. Paragraph Nos.27 and 28 of the judgment of the Hon’ble Supreme Court in the case of Postmaster General (supra) read as under:

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“27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved

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including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

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Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making

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several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.”

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10. We have considered the explanation offered by

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the State in light of the observations of the Hon’ble Supreme Court and we find that there is no cogent explanation offered which is sufficient in law to condone the delay in filing the appeals. There is in fact no explanation as to why without the records the appeals could not be filed. Also as to whether after tracing the records ultimately the appeals were filed on the basis of records. If so, when the records were traced. In fact, the reference in the grounds of appeals to the records of the case is what has been stated in the impugned judgment by the learned Single Judge. We find that non-tracing of records being the reason for delay of 336 days in filing the appeals cannot be believed.

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Hence, the application, I.A. No.1/2015,

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seeking condonation of delay of 336 days in filing the appeals is dismissed.

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In the result, the Writ Appeals stand

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dismissed.

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In view of disposal of the appeals, pending applications stand disposed of.

Sd/JUDGE

Sd/JUDGE

sma

PTO….

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BVNJ & RVHJ:

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W.A.No.456/2015 c/w W.A.No.874/2015

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25-11-2020

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ORDER ON “FOR BEING SPOKEN TO”

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These appeals were disposed of by judgment dated 16/09/2020. However, due to technical reasons, the judgment has not been uploaded. Hence, the matters have been listed “ For Being Spoken To ”.

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The Registry is directed to ensure that hereinafter, where a common memorandum of appeal has been filed by the appellant when separate sets of writ petitions have been disposed of or appeals arise from separate sets of writ petition or writ petitions and separate writ appeal numbers have been allotted, the cause-list must indicate the separate writ appeal numbers and not only one number.

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The aforesaid direction is being issued in order to remove any doubt that may arise on account of single number being allotted to the files, but which contain common memorandum of writ appeal arising from two

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separate sets of writ petitions which have been disposed of by a common order by the learned Single Judge and where two separate writ appeal numbers have been allotted.

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It is clarified that this direction does not apply to additional numbers allotted to a writ petition or commonly referred to as “ and numbers ”.

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A copy of this order be placed before the Registrar (Judicial) for issuing directions for review of the files so as to indicate the correct numbers in the cause-list.

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Sd/JUDGE

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Sd/JUDGE

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*mvs

The State of Karnataka v. Sri. T. Mallesh

Case brief

What is this about?

What did the court decide?

The State of Karnataka v. Sri. T. Mallesh

Case brief

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