ERAPPA vs. THE DEPUTY COMMISSIONER

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WP No. 9257 of 2014

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF NOVEMBER, 2022 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 9257 OF 2014 (SC/ST) BETWEEN:

ERAPPA S/O BHEEMA BHOVI DEAD BY LR. RAJABHOVI S/O ERAPPA AGE, 35 COOLI R/O NERALEKERE TARIKERE TALUK CHIKKAMAGALORE DISTRICT - 577 134. …PETITIONER (BY SRI. SYED AKBAR PASHA, ADVOCATE FOR SRI. MAHANTESH S. HOSMATH, ADVOCATE)

AND:

3(a)

B. MALLAIH S/O BASAPPA DEAD BY LRS

M. RUDRAPPA S/O B. MALLAIAH AGED ABOUT 64 YEARS R/O MEDIHALLI TARIKERE TALUK CHIKKAMAGALORE DISTRICT-577134.

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3(b) M. JAYADEVAPPA S/O B. MALLAIAH AGED ABOUT 56 YEARS R/O MEDIHALLI TARIKERE TALUK CHIKKAMAGALURU DISTRICT

3(c) M. SHASHI S/O B. MALLAIAH AGED ABOUT 46 YEARS R/O MEDIHALLI TARIKERE TALUK CHIKKMAGALURU DISTRICT

3(d) SMT. RATHNAMMA W/O MAHESHWARAPPA D/O MALLAIAH AGED ABOUT 62 YEARS R/O KUDLUR VILLAGE TARIKERE TALUK CHIKKMAGALURU DISTRICT

3(e) SMT. LALITHAMMA W/O CHENNAMALLAPPA D/O MALLAIAH AGED ABOUT 60 YEARS R/O CHOULAHIRIYUR KADUR TALUK CHIKKAMAGALURU DISTRICT

3(f) SMT. NIRMALA W/O ESHWARAPPA D/O MALLAIAH AGED ABOUT 45 YEARS R/O NARSIPURA VILLAGE TARIKERE TALUK CHIKKMAGALURU DISTRICT

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3 3(g) SMT. KUMARAMMA W/O KUMARAPPA D/O LATE MALLAIAH AGED ABOUT 40 YEARS HUNUSEGHATTA VILLAGE TARIKERE TALUK CHIKKAMAGALURU DISTRICT

3(h) SMT. SAVITHA W/O BASAVARAJAPPA D/O LATE MALLAIAH AGED ABOUT 40 YEARS R/O CHANNENAHALLI ESTATE KADURU TALUK CHIKKAMGALURU DISTRICT

…RESPONDENTS (BY SRI. VENKATASATHYA NARAYANA, HCGP FOR R1 & R2; SRI. A.G. SHIVANNA, SR. ADVOCATE FOR CHANDRASHEKAR, ADVOCATE FOR R3 (A TO H)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE DEPUTY COMMISSIONER CHIKMAGALORE, DATED.07.02.89 VIDE ANNEXURE-C & PLEASE TO CONFIRM THE ORDER PASSED BY THE ASST. COMMISSIONER TARIKERE, DATED:28.10.88.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Present petition is filed by the petitioner seeking following relief: "Issue certiorari quashing the impugned order passed by the Deputy Commissioner Chikmagalore in PTCL 90:88-89 dated 07.02.89

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4 Annexure-C and please confirm the order passed by the Assistant Commissioner Tarikere in SCST 82 83-84 dated 28.10.88, which is produced at Annexure-B to the writ petition."

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5 aside the order of restoration passed by the respondent No.2 as per Annexure-C.

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6 respondent No.3(a) to 3(h) was mutated in the revenue records vide M.R.No.5/1992-93 as per Annexure-R-3 and R-4 and the same was well within the knowledge of the petitioner. It is also contended the averments made by the petitioner with regard to the delay in filing the writ petition are false and misleading. In that the petitioner herein before approaching this court had filed a petition under Section 136 read with Section 49 of the Karnataka Land Revenue Act, 1964 before the Assistant Commissioner, Tarikere, in which he had specifically pleaded that the land in question was originally granted to his grandfather one Sri.Bheemabhovi, S/o Dasabhovi. That said Bheemabhovi along with his two sons namely Erappa @ Erabhovi, Dasappa @ Dasabhovi, the father and uncle respectively of the original petitioner jointly had executed a deed of sale dated 23.08.1965 conveying the grant land in faovur of B.Mallaiah. That father of the petitioner Erappa @ Erabhovi had initiated proceedings before the Assistant Commissioner in case No.SC/ST/82/83-84 against said Mallaiah which was

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WP No. 9257 of 2014

7 allowed by order dated 28.10.1988 restoring their land in favour of Erappa @ Erabhovi. Accordingly, the revenue records were mutated in the name of Erappa also known as Erabhovi, vide M.R.No.10/1988-89. That the name of said Erappa continued in the pahanis between 1988-89 and 1995-96. That for the years 1991-92 to 1995-96 the name of B.Mallaih had been mutated in the revenue records vide M.R.No.5/1992-93 referring to the orders of the Deputy Commissioner without having any rights. That the petitioner being desirous of developing the land had applied and obtained the mutation entries and thereafter learnt about concoction and fabrication of records for the purpose of khatha in the names of the respondents. Hence, sought for cancellation of khatha and registration of same in his name. It is further contended that the petitioner without disclosing the aforesaid aspects of the matter and by suppressing the same has approached this court after lapse of 25 years. As such, petition is required to be dismissed for delay and laches.

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8 5. Learned counsel for petitioner reiterating the grounds urged in the memorandum of petition submitted that; a) the order is passed by the Assistant Commissioner taking into consideration of the fact that though the non-alienation period prescribed under the grant was 10 years, in view of the amendment made to Rule 43 of Mysore Land Grant Rules which provided for non- alienation period of 20 years, set aside the sale deed and directed for restoration of land. b) That the respondent No.1 being appellate authority grossly erred in setting aside the order of respondent No.2 Assistant Commissioner, merely on the ground that respondent No.1 had earlier passed order in an identical matter where non-alienation period fixed was for only 10 years and thus erroneously found the order of respondent No.2 Assistant Commissioner to be incorrect as he had taken non alienation period to be 15 years.

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9 c) Learned counsel drawing attention of this court to the notification dated 04.08.1953 submits that notwithstanding period of 10 years prescribed under the grant certificate the amended rule providing for 20 years should be read into.

d) Learned counsel refers to the Judgment of this court in the case of G.Gangappa dead by LR Vs State of Karnataka and others reported 1991(4)KLJ 246 wherein in an identical matter grant certificate had provided a clause imposing 10 years as non- alienation period while Rule 43(8) provided non alienation period of 20 years. This court referring to settled principles of law that where there is a variation of period of non alienation between saguvali chit and provisions of law governing the grant, had held that notwithstanding the period of 10 years prescribed in the grant certificate the period prescribed by the rule shall prevail.

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10 e) He submits the land admittedly granted on 22.08.1955 as such the period of prohibition of 20 years would extend upto the year 1975 in terms of the amended rule. However sale has taken place on 23.08.1965, thereby there was a clear violation of the terms of grant requiring the impugned order to be set aside. 6. In response to the same, Sri.A.G.Shivanna, learned Senior counsel for respondent No.3(a to h) referring to the Judgment in the case of Chinde Gowda Vs Puttamma reported in 2008(4)KCCR 2837 submits that since the original grantee not having challenged the grant conditions at the time of grant, it is not open for the grantee to question the same at a later stage. Learned Senior counsel further raises an issue with regard to the very maintainability of the writ petition on the premise that the order at Annexure-C was passed on 07.02.1989 while present writ petition is filed on 19.02.2014 which is about 25 years after the passing of the order. Learned Senior counsel referring to the Judgments in the case of:

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11 1. University of Delhi Vs Union of India and others reported in (2020) 13 SCC 745, 2. Commissioner of Income Tax, Ghaziabad Vs Hapur Pilkhuwa Development Authority reported in (2018) 17 SCC 7. 3. Syed Mohisina Mohammedi Vs Mysore Urban Development Authority, Mysore reported in 2015(3) Kar LJ 186, 4. Santhosh V Rai Vs Legory Saldhana and others reported in (2015)1 Kant LJ 429

submits that it is a trite law that prayer for condonation of delay without sufficient cause cannot be accepted. Learned counsel submits that a party intending to invoke jurisdiction under Articles 226 and 227 of the Constitution of India has to come within reasonable time.

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13 the impugned order, regarding non -availability of the Darkhasth register and saguvali chit register, the nature of grant has remained uncertain. 11. That apart, in the present matter which is filed after a lapse of 25 years from the date of the order passed by the Deputy Commissioner, the very maintainability is questioned by the respondent on the ground of delay and laches. It is relevant at this juncture to refer to the law laid down in the aforesaid Judgments which are extracted hereunder: (1) (2020) 13 SCC 745 - University of Delhi Vs Union of India and others - paragraph 23 "23. From a consideration of the view taken by this Court through the decisions cited supra the position is clear that, by and large, a liberal approach is to be taken in the matter of condonation of delay. The consideration for condonation of delay would not depend on the status of the party namely the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render even- handed justice to the parties. Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation would not be enough but it should be in

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14 the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation. In Katiji the entire conspectus relating to condonation of delay has been kept in focus. However, what cannot also be lost sight is that the consideration therein was in the background of dismissal of the application seeking condonation of delay in a case where there was delay of four days pitted against the consideration that was required to be made on merits regarding the upward revision of compensation amounting to 800%..

(2) (2018)17 SCC 7 - Commissioner of Income Tax, Ghaziabad Vs Hapur Pilkhuwa Development Authority - "4. As we have noted, there is an inadequate explanation of delay of 596 days in filing the petition and a misleading statement about pendency of a similar civil appeal. Under the circumstances, we dismiss the petition with costs of Rs.10 lakhs to be paid to the Supreme Court Legal Services Committee within four weeks from today. The amount be utilised for juvenile justice issues. "

(3) 2015(3) Kar.L.J. 186 - Syed Mohisina Mohammedi Vs Mysore Urban Development Authority, Mysore - paragraph 6

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15 "Be that as it may. When the petitioner received communication dated 16.11.2000 with regard to production of document in support of her allotment in the reserved category, she became aware of the fact that she has not been allotted site in general category. Thereafter, she made a representation stating that she does not belong to schedule caste. No further steps were taken by her with regard to seeking allotment of site or with regard to rectification of her application for allotment of site in general category. Having regard to these facts and circumstances, the respondent has rightly cancelled the site allotted to the petitioner in the Schedule Caste category, as the petitioner admittedly does not belong to that category. Therefore, the petitioner cannot have any grievance with regard to allotment of site to her in the Scheduled Caste Category. The cancellation is dated 08.06.2005. Since then the petitioner has not challenged that order nor has taken any further steps with regard to allotment of site to her. The filing of this writ petition in the year 2015 is highly belated and the writ petition has to be dismissed on the ground of delay and laches by placing reliance on the Judgments of the Hon'ble Supreme Court."

(4) (2015)1 Kant LJ 429 - Santhosh V Rai Vs Legory Saldhana and others - "That apart, the impugned order in the instant case is of the year 1981. Petitioner has assailed the impugned order after a lapse of 32 years. It is difficult to believe that the petitioner or his father were unaware of the impugned order. They are residents of Attavar Village. In fact residents of villages would be aware with regard to occupation, possession and cultivation of agricultural lands, particularly when Tribunal has granted occupancy rights. Therefore, the petitioner cannot contend that the impugned order is a nullity

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16 as it is in violation of principles of natural justice as there is no service of notice on the legal representatives of the petitioner's mother Ramaramba. Therefore, the writ petition would have to be dismissed on the ground of delay and latches and as being a speculative exercise. In this context, a plethora of decisions of the Hon'ble Supreme Court on the issue regarding delay and as to how a Court of equity exercising jurisdiction under Article 226 of the Constitution of India cannot extend its hands to such persons who approach the Court after several years can be relied upon. In fact, the Apex Court has held in several decisions that stale claims ought not to be entertained by High Courts exercising writ jurisdiction under Article 226 of the Constitution of India. The recent decisions in that regard are as follows: (a) In a recent decision of the Apex Court in State of Orissa v Mamata Mohanty, the consideration of an application where delay and laches could be attributed against a person who approaches in a writ petition is discussed by stating that though the Limitation Act, 1963 does not apply to writ jurisdiction, however, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions could be dismissed at the initial stage on the ground of delay and laches. (b) In the case of Shankara Co-operative Housing Society Limited v. M. Prabhakar and Others, the Apex Court at para 53 has given the relevant considerations, in determining whether delay or laches in approaching the Writ Court under Article 226 of the Constitution of India. The same reads as follows: "53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the Writ Court under Article

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17 226 of the Constitution is now well-settled. They are: (1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts; (2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners; (3) The satisfactory way of explaining delay in making an application under Articles 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy; (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts' (5) That representations would not be adequate explanation to take care of the delay". (c) Similarly, the Apex Court in the case of Sawaran Lata v State of Haryana and Others, has held that when the notification under Section 4 of the Land Acquisition Act, 1894 was issued in the year 2001 and the award was passed in the year 2004, writ petitions filed for quashing of the notification in the year 2009 have to be dismissed on the ground of delay as the litigants who dare to abuse the process of the Court in disregard of the law of limitation, delay and laches should not be encouraged.

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18 (d) Reference can also be made to another decision of the Apex Court in the case of State of Rajasthan and Others v D.R. Laxmi and Others, wherein it has cautioned the High Court not to entertain the writ petitions where there is inordinate delay while exercising jurisdiction under Article 226 of the Constitution of India. (e) Similarly, in the case of Municipal Council, Ahmednagar and Another v Shah Hyder Beig and Others, it has been opined thus: "The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time such but the test is whether by reason of delay, there is such, negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the Writ Court, the rights of the third parties have come into being which should not be allowed to disturb unless there is reasonable explanation for the delay." (f) In fact in S.S. Balu and Another v State of Kerala and Others, it has been held that delay defeats equity and that relief can be denied on the round of delay alone even though relief is granted to other similarly situated persons who approach the Courts in time. (g) To a similar effect is the decision of the Hon'ble Supreme Court in Andhra Pradesh Industrial Infrastructure Corporation Limited v Chinthamaneni Narasimha Rao and Others.

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19 present petition which is filed after 25 years requires to be dismissed at the threshold.

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20 one of his relative Nerlekere helped him financially and brought him to Bangalore 3 months after getting a copy from D.C. office, that is on 15.02.2014 and contacted the present Counsel. Looking at the illegal order of DC and delay in approaching the High Court the Counsel asked about delay who narrated his tragedy in life and poverty and assistance of his well- wishers recently and unaware of AC or DC orders. Thereafter, the Counsel prepared the writ petition on same day as next day was Sunday, hence filed on Monday 17.02.2014. Hence delay is not intentional but for the above circumstances. Kindly condone the delay as petitioner is suffered for illegal order of DC Chikkamagaluru and deprived of benefit of PTCL Act. Since object of the Act to be prevail. This Hon'ble Court has taken view in these circumstances as thus. "When the unjust decision is taken by the Authority apparently on face it is contrary to statue and Rules and perverse even 17 years delay condoned to meet the ends of justice, 2008(5) KCCR S.No.632, AIR 2009 (NOC) 2147, ILR 2008 Kar 4091. Hence, pleased to on humanitarian ground condone the delay as the D.C. order is unjust hence please give the Poor petitioner as an opportunity The grant is free grant and probation period is 20 years, not 10 years as held by D.C. which concludes that finding someone who is illegal with reversed the A.C. order A.C. order is perfectly correct view accordance grant rules prevailing kindly interfere."

10(e) The late Erappa who was the party and grantee before the A.C and D.C belongings schedule caste dead 1989. He had not reported

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21 about the proceedings to his son nor to his wife, his wife also died. Son is illiterate and innocent coli, and even he has no worldly knowledge who is belongs to schedule caste. They have no other source for livelihood except coli. Recently some of his Dalit Association elders have come to make awareness of schedule cast people in rural area found the petitioners untasteful history and poverty advised him to know the records of his family where the lands granted to their family but he had no records but villagers told the land was granted to his father late Erappa but it was sold neighbouring Villager Mallaih of Amruthapura, when the petitioner approached him, he did not inform anything, then on Assistance of the Social workers of Schedule caste, the petitioner came to the Thasildar and AC office in the month of October 2012 and while the officers searched found the AC order was passed in favour of the petitioners father. He requested them to issue the copy, the officers asked him to come after 3 months where they have to search other records. After 3 months when petitioner gone they gave the copy of AC order. But that day they told the AC order is set aside by DC in appeal and directed the petitioner to go to DC office Chikkamagaluru as the petitioner is coli who had no fund for all these expenses hence looking at his poverty and illiteracy the social worker helped him financially and sent him to Chikkamagaluru where he applied for copy on 08.10.2013, and they asked him to come after 3 days, hence he went on 11- 20-13 to whom the DC office issued a copy and advised to approach High Court at Bengaluru."

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22 15. On a perusal of the aforesaid paragraph Nos. 8 and 10(e) of the petition, it is not clear as to the date on which the father of the petitioner passed away. Except stating that "the late Erappa was a party/original grantee before Assistant Commissioner and Deputy Commissioner belong to Schedule Caste, dead after 1989" no particular date is provided with regard to death of said Erappa. It is also not clear from the averments in the said paragraphs as to the date on which the petitioner learnt about the impugned orders. The reasons provided at paragraphs 8 and 10(e) to the writ petition are speculative and illusory falling short of basic requirement of sufficient cause to be shown.

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23 by the petitioner seeking cancellation of mutation entries made in the name of respondents 3(a to c) in the present petition who were respondents 2 to 4 before the Assistant Commissioner. In the said petition the petitioner has pleaded that the land in question was originally granted to his grandfather one Sri.Bheemabhovi, S/o Dasabhovi. Mallaiah, original respondent No.3 purchased the subject property from the said Bheemabhovi along with his two sons namely Erappa @ Erabhovi, Dasappa @ Dasabhovi, the father and uncle respectively in terms of deed of sale dated 23.08.1965. Subsequently, Erappa @ Erabhovi, the father of the petitioner initiated proceedings before the Assistant Commissioner in case No.SC/ST/82/83-84 against said Mallaiah alleging violation of law and sought for restoration of land which was allowed by order dated 28.10.1988. Revenue records were mutated in the name of Erappa also known as Erabhovi, vide M.R.No.10/1988- 89 which continued in the pahanis between 1988-89 and 1995-96. That the name of Mallaiah was clandestinely mutated in the revenue records for the years 1991-92 to

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24 1995-96 vide M.R.No.5/1992-93 on the premise of an order of the Deputy Commissioner. That the petitioner being desirous of obtaining loan for development of land had applied and obtained the mutation entries and thereafter learnt about the aforesaid mutation entries in the name of respondent No.3 and immediately filed the said petition seeking cancellation of khatha. From this aspect of the matter it is clear that the petitioner on his own applied and obtained mutation entries for the purpose of availing loan to develop the land and learnt about the mutation entries of which he has sought for cancellation by filing the said petition on 18.07.2012. An application under Section 5 of the Limitation Act is also filed repeating the averments made in the petition. The present petition is filed by the petitioners on 19.02.2014. As seen above the averments made in paragraph Nos.8 and 10(e) of the petition are completely contrary and are in conflict with the averments made by the petitioner in the aforesaid petition filed before the Assistant Commissioner under Section 136 read with 49 of the Karnataka Land Revenue

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25 Act, 1964. Learned counsel for the petitioner does not dispute petitioner having filed such a petition.

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For the aforesaid reasons, the petition deserves to be dismissed. Petition is dismissed.

Sd/- JUDGE

SBN