Karnataka High Court
Radhika Krishna Murthy, vs The Assistant Commissioner, on 12 August, 2021
Author: Krishna S. Dixit
Bench: Krishna S.Dixit
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 12TH DAY OF AUGUST, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.43481 OF 2012 (KLR-RES)
BETWEEN:
RADHIKA KRISHNA MURTHY,
AGED ABOUT 43 YEARS,
D/O SRI.KRISHNA MURTHY,
RESIDING AT NO.84,
BULL TEMPLE ROAD,
BASAVANAGUDI,
BANGALORE - 560 019.
REPRESENTED BY HER POWER OF
ATTORNEY HOLDER G.S.ESWAR.
(SENIOR CITIZENSHIP BENEFIT NOT CLAIMED)
...PETITIONER
(BY SRI.S S NAGANAND, SENIOR COUNSEL FOR
MR.S. SRINIVASA MURTHY, ADVOCATE)
AND:
THE ASSISTANT COMMISSIONER,
BANGALORE SOUTH SUB-DIVISION,
BANGALORE.
... RESPONDENT
(BY SRI. A.R.SRINIVAS, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR THE RECORDS IN APPEAL NO.298/04 BEFORE THE
KARNATAKA APPELLANT TRIBUNAL (CH-2) BANGALORE &
SET ASIDE THE ORDER DATE 27.8.12, IN APPEAL NO.298/04
PASSED BY THE KARNATAKA APPELLATE TRIBUNAL,
BANGALORE (CH-2) VIDE ANN-K & ALLOW THE APPEAL.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN B GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
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ORDER
Petitioner who had suffered an order of forfeiture of her land at the hands of respondent-Assistant Commissioner in terms of sec.83 of the Karnataka Land Reforms Act, 1961 had preferred Appeal No.298/2004 u/s.118(2) of the Act; the same having been negatived by the Karnataka Appellate Tribunal vide order dated 27.08.2012, she is knocking at the doors of writ court.
2. Learned Addl. Govt. Advocate appearing for the official respondents vehemently opposes the writ petition making submission in justification of the impugned order and the reasons on which it has been structured; he contends that a writ court exercising a limited supervisory jurisdiction constitutionally vested under Article 227 does not ordinarily undertake a deeper examination of the matter of the kind and therefore impugned order cannot be faltered.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant a limited indulgence in the matter as under and for the following reasons:
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(a) The subject land ad measures 4 Acres & 24 Guntas which the petitioner has bought vide registered sale deed 27.09.1999; apparently extent of the land is huge and obviously it is valuable; the forfeiture order comprising the subject land is not shown to have been communicated to the petitioner by the Assistant Commissioner who had reserved the matter for pronouncement of orders without specifying the date;
petitioner coming to know of the pronouncement of the order, albeit belatedly has preferred the appeal with consequential delay for which an explanation is offered in the accompanying application that was supported by the affidavit of the counsel on record; a specific prayer was made seeking condonation of delay;
(b) Why the appeal could not be filed within the limitation period of 60 days is apparently within the knowledge of the counsel who had sworn to the affidavit which supported the subject application; this court is at loss to know as to how such an affidavit can be found fault with merely because it is sworn to by the counsel and not his client; ideally speaking, the parties should swear to the affidavit supporting the application of the kind, is true; however, at times counsel do this when facts are in their 4 knowledge as well; if this was not the correct procedure, nothing prevented the K.A.T. from asking the party to swear to another affidavit supporting the application; a trivial mistake, if at all it is, is celebrated by the K.A.T. by dismissing the appeal itself on that ground; this is not a happy thing to happen in the adjudicatory process; a Division Bench of this court in STATE OF KARNATAKA vs. NAGAPPA, AIR 1986 KANT 199 has held that even a time barred appeal cannot be rejected without giving an opportunity to the appellant to file an application for the condonation of delay; this position of law too comes to the aid of the petitioner;
(c) Sec. 122 of the 1961 Act specifically incorporates inter alia sec.5 of the Limitation Act, 1963 and therefore the K.A.T. had power to condone the delay; after all such a condonation of a short delay would not have added additional merits to the appeal; thus no prejudice would have been caused to the respondents by the condonation of delay per se; it is not that if the appeal was filed in time, the Tribunal would have disposed it off at once on merits; this Court is seeing long pendency of several such appeals; if appeal was filed in time, at the most its papers would have been languishing in the cupboard of the Tribunal; all 5 this is not kept in view by its members while passing the impugned order; thus there is an error apparent on the fact of the record warranting indulgence of this Court.
(d) There is yet another aspect to the matter; there is a legislative intervention, namely, the Karnataka Act No.56 of 2020 whereby the very provisions of sections 79A & 79B of the 1961 Act have been done away with and that too with retrospective effect from 01.03.1974; arguably petitioner may draw milk under the said amendment, as well.
In the above circumstances, this writ petition is allowed; a Writ of Certiorari issues quashing the impugned order; consequently petitioner's subject appeal is restored to the Board for being disposed off by the Karnataka Appellate Tribunal, Bengaluru in accordance with law and also the latest aforesaid amendment to the 1961 Act. All contentions are kept open.
No costs.
Sd/-
JUDGE Bsv