Karnataka High Court
The Chief Secretary vs Sri. E. Krishnappa on 7 October, 2020
Bench: B.V.Nagarathna, N S Sanjay Gowda
-: 1 :-
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 07TH DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA
WRIT APPEAL No.3218/2019 (GM-TEN)
BETWEEN:
1. THE CHIEF SECRETARY,
GOVERNMENT OF KARNATAKA,
REVENUE DEPARTMENT,
VIDHANA SOUDHA,
BANGALORE - 560 001.
2. THE DEPUTY COMMISSIONER,
BENGALURU URBAN DISTRICT,
BANGALORE - 560 001.
3. THE ASSISTANT COMMISSIONER,
NORTH SUB-DIVISION,
BANGALORE - 562 123.
4. THE TAHASILDAR (NOW ENFORCEMENT)
PREVENTION OF UN-AUTHORIZED
CONSTRUCTION CELL,
OFFICE OF THE DEPUTY COMMISSIONER,
K.G. ROAD,
BENGALURU - 560 009. ... APPELLANTS
(BY SRI T.L. KIRAN KUMAR, ADDL. GOVERNMENT ADVOCATE)
AND:
SRI E. KRISHNAPPA
S/O. ERAPPA,
AGED ABOUT 61 YEARS,
R/O. NO.1, ADAKEMARANAHALLI,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU - 562 123. ... RESPONDENT
(BY SMT. SONA VAKKUND, ADVOCATE (THROUGH VIDEO
CONFERENCE)
-: 2 :-
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THIS WRIT
APPEAL AND SET ASIDE THE ORDER DATED 16/03/2016
PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE
COURT IN W.P.NO.57102/2014 (GM-TEN).
THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-
JUDGMENT
Though there is a delay of 1226 days in filing the appeal, we have, nevertheless, heard learned Additional Government Advocate for the appellants and learned counsel for respondent No.1 herein.
2. This appeal is directed against the order of the learned single Judge dated 16/03/2016, in W.P.No.57102/2014, filed by respondent No.1 herein.
3. Learned Additional Government Advocate submitted that the delay of 1226 days had occurred due to bona fide and unintentional reasons. The same has been explained in the affidavit of the Tahsildar, Enforcement Cell, Bengaluru Urban District, Bengaluru, as to why there was a delay in filing the appeal. He submitted that the State has a good case on merits and therefore, delay may be condoned and the appeal may be heard on merits. -: 3 :-
4. Per contra, learned counsel for respondent No.1 with reference to her statement of objections contended that the delay is huge inasmuch as the delay is over three years and the reasons assigned are not sufficient in law to be accepted for condonation of delay. She further submitted that the order of learned single Judge is just and proper and there is no merit in the appeal. Therefore, the appeal may be dismissed by dismissing the application filed by the State seeking condonation of delay.
5. In light of the submission made by learned counsel for the respective parties, we have perused the affidavit filed by Smt. S.Kavitha, working as Tahsildar, Enforcement Cell, Bengaluru Urban District, Bengaluru, in support of the application seeking condonation of delay. Paragraph Nos.2 to 6 of the affidavit reads as under:
"2. I humbly submit that aggrieved by the Order of the learned Single Judge dated 16.03.2016 in Writ Petition No.57102/2014 (GM- TEN), above Writ Appeal has been filed by the Appellants.
3. I humbly submitted that after the Judgment in Writ Petition No.57102/2014 (GM- TEN), a Letter was written to the Government, recommending to file an Appeal against the Judgment passed in Writ Petition No.57102/2014 -: 4 :- (GM-TEN). The Government, in the reply Letter dated 05.11.2016, directed to furnish copies of the Order passed in Writ Petition No.57102/2014 (GM- TEN) and other necessary documents.
4. I humbly submit that the Government has issued an Order No.RD 50 LGX 2016 (LC), Bengaluru, dated 07.08.2017 according sanction to file Writ Appeal and appoint Tahsildar, Enforcement Cell, Bengaluru Urban District, as Litigation Conducting Officer.
5. I humbly submit that Letter dated 30.08.2017 written to the Additional Government Advocate, requesting to prepare Writ Appeal, pursuant to the Government Order No.RD 50 LGX 2016 (LC), Bengaluru, dated 07.08.2017 according sanction to file Writ Appeal and thereafter, there were several correspondences between Government and the Department with respect to furnishing of documents for filing of Writ Appeal which consumed considerable length of time which is bona-fide.
6. I humbly submit that due to intervening Loksabha Election of 2019, the Officials could not follow the matter for about 6 months and as such, the delay in filing the Writ Appeal is bona- fide and not intentional and the delay is only on account of administrative reason."
6. It is noted that learned single Judge disposed the writ petition on 16/03/2016. Thereafter, the State Government passed an order only on 07/08/2017 -: 5 :- according sanction to file an appeal and ultimately, the appeal has been filed on 26/08/2019. Although a letter is stated to have been written to the State Government recommending filing of an appeal against the impugned judgment on 05/11/2016 (which was after eight months), the State Government asked for furnishing copies of the impugned order, but subsequently, till 07/08/2017, i.e., for over nine months, no order was passed by the State Government sanctioning filing of the appeal. The said order was passed only on 07/08/2017 and ultimately, the appeal was filed on 26/08/2019. There is no explanation as to why there was a delay in according sanction to file an appeal by the State Government. In the circumstances, we do not find the explanation offered is sufficient in law so as to condone the exorbitant delay of 1226 days in filing the appeal. In this regard, we may refer to the judgment of the Hon'ble Supreme Court in the case of Post Master General and others vs. Living Media India Limited and another [(2012)3 SCC 563], wherein at paragraph Nos.27 to 29, the Hon'blwe Supreme Court has observed as under:
"27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing -: 6 :- 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.
28. 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 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.
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 -: 7 :- duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."
Hence, the application, I.A.No.1/19 seeking condonation of delay is dismissed. Consequently, the appeal stands dismissed.
In view of the dismissal of the appeal I.A.No.2/19 also stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE S*