THE STATE OF KARNATAKA vs KRISHNA SO JOTIBA BADAWANACHE
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
TH
DATED THIS THE 30 DAY OF OCTOBER 2026
PRESENT
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
AND
THE HON'BLE MRS JUSTICE HEMA KULKARNI
WRIT APPEAL NO.100519 OF 2025 (ULC)
BETWEEN:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT,
M.S BUILDING, DR. AMBEDKAR VEEDHI,
BANGALORE-560001.
2. THE COMPETENT AUTHORITY
UNDER THE URBAN LAND
(CEILING AND REGULATION) ACT, 1976D
AND DEPUTY COMMISSIONER, BELGAUM-590001.
3. THE THASILDAR
BELAGAVI, TQ: & DIST: BELAGAVI-590001.
Digitally signed
by PRATIBHA M
PATIL
Location: HIGH
COURT OF
KARNATAKA
DHARWAD
BENCH
Date: 2026.11.12
12:29:57 +0530
4. THE SUPERINTENDENT
GOVERNMENT SCHOOL FOR
DEAF CHILDREN REMAND HOME BUILDING,
NEHRU NAGAR, BELGAUM-590001.
…APPELLANTS
(BY SRI.RAKESH M.BILKI, GOVT. ADVOCATE)
AND:
JOTIBA S/O. SUBRAO BADAWANACHE
SINCE DECEASED BY HIS LRs.
KRISHNA S/O. JOTIBA BADAWANACHE
AGE: 81 YEARS, R/O. HOUSE NO.4087,
KANGRAL GALLI, BELGAUM-590001.
2. BALIRAM S/O. JOTIBA BADAWANACHE
AGE: 76 YEARS, R/O. HOUSE NO.4137,
1.
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KANGRAL GALLI, BELGAUM-590001.
3. ANANT S/O. JOTIBA BADAWANACHE
AGE: 76 YEARS, R/O. HOUSE NO.4087,
KANGRAL GALLI, BELGAUM-590001.
MAHADEV S/O. JOTIBA BADAWANACHE
SINCE DECEASED BY HIS LRs.
4. LAXMIBAI W/O. MAHADEV BADAWANACHE
AGE: 81 YEARS, R/O. HOUSE NO.4137,
KANGRAL GALLI, BELGAUM-590001.
5. SADANAND S/O. MAHADEV BADAWANACHE
AGE: 59 YEARS, R/O. HOUSE NO.4137,
KANGRAL GALLI, BELGAUM-590001.
6. JAYASHREE D/O. MAHADEV BADAWANACHE
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O. HOUSE NO.4137, KANGRAL GALLI,
BELGAUM-590001.
7. MANOJ S/O. MAHADEV BADAWANCHE
AGE: 56 YEARS, R/O. HOUSE NO.4137,
KANGRAL GALLI, BELGAUM-590001.
8. SATISH S/O. MAHADEV BADAWANACHE
AGE: 55 YEARS, R/O. HOUSE NO.4137,
KANGRAL GALLI, BELGAUM-590001.
9. SUCHITRA D/O. MAHADEV BADAWANACHE
AGE: 59 YEARS, R/O. HOUSE NO.4137,
KANGRAL GALLI, BELGAUM-590001.
10. KIRAN S/O. MAHADEV BADAWANACHE
AGE: 59 YEARS, R/O. HOUSE NO.4137,
KANGRAL GALLI, BELGAUM-590001.
…RESPONDENTS
(BY SRI.VISHWANATH HEGDE, ADVOCATE FOR
R5, R6 AND R8 TO R10)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE
IMPUGNED ORDER PASSED BY THE LEARNED SINGLE JUDGE IN
WRIT PETITION NO.110817 OF 2014 (ULC) DATED 11-10-2022 AND
FURTHER DISMISS THE WRIT PETITION IN THE INTEREST OF
JUSTICE AND EQUITY; AND ETC.
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THIS WRIT APPEAL COMING ON FOR ORDERS THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
AND
HON'BLE MRS JUSTICE HEMA KULKARNI
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.NAGAPRASANNA )
1. The State is the appellants, stands before us,
calling in question the order of the learned Single Judge dated
11.10.2022 in Writ Petition No.110817/2014. The order reads
as follows:
“ORDER
The father of the petitioners had filed a declaration
under Section 6 of the Urban (Ceiling and Regulation)
Act 1976. The then Competent Authority in exercise of
power conferred under Section of 10(3) of the Act 1976
passed an order declaring that he was holding an excess
land to an extent of 4062.63 Sq.mtrs in Sy. No.193/1A
of Karngrali Khurd Village at Belagavi taluk vesting the
excess land with the Government free from all
encumbrance. Thereafter the Revenue Inspector is
alleged to have taken the possession of subject land on
11.01.1983 by drawing the panchanama in the presence
of two panchas.
2. The Act, 1976 was repealed by Urban Lands
(Ceiling and Regulation) Repeal Act, 1999 and Section
3(2)(a) of the Act, 1999 specifies that the land which is
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deemed to have vested in the State Government under
Section 10(3), but the possession of which has not been
taken by the Competent Authority as specified under
Section 10(5) & (6) of the Act, 1976 shall be restored to
the original owner subject to repayment of the
compensation received, if any.
3. Learned counsel appearing for petitioners
submits that the lawful possession of the subject land
was not taken as specified under Section 10(6) of the
Act, 1976 and as such the petitioners are entitled for
restoration of the subject land as specified under Section
3(2)(a) of the Repealing Act, 1999.
4. On the other hand, learned High Court
Government Pleader appearing for the State submits as
follows:
a) The possession of the land having been taken as
specified under section 10(6) of the Act, 1976, the
petitioner is not entitled for restoration of the subject
land.
b) The possession of the subject land having been
taken in the year 1993, the present petition filed
after lapse of more than 30 years is hit by delay and
latches and on this ground alone the writ petition
deserves to be dismissed.
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c) The subject land was allotted in favour of
respondent No.4 for construction of school for deaf
and dumb children.
5. I have examined the submissions made by the
learned counsel for the parties.
6. In the case of VAIJAYANTI VS. THE STATE
OF KARNATAKA REPRESENTS BY ITS SECRETARY
URBAN DEVELOPMENT DEPARTMENT AND
ANOTHER (ILR 2014 KAR 4648), the Division of this
Court at paras-8 and 9 has held as follows:
“8. In our opinion, that observation applies on all
its fours to the facts of this case. The competent
authority had no jurisdiction to declare agricultural
land in question as urban land or excess vacant
land since it did not fall within the said definition
under Section 2(O) of the ULCAR Act. The
competent authority having not examined his
jurisdiction to entertain the declaration and pass
orders thereon, the order of the competent
authority declaring the land in question as excess
vacant land suffers from lack of jurisdiction, hence
void ab initio.
9. In Mallaiah's case, the co-ordinate Division
Bench further observed that the "Learned Single
Judge was not justified in dismissing the writ
petition on the ground of delay and latches more
appropriately when the competent authority had
passed an order without jurisdiction. In the facts
of this case, though there is a delay of 18 years in
filing the writ petition calling in question the order
of the competent authority, nevertheless since the
order is without jurisdiction is non est hence the
question of delay and latches does not arise. In
our opinion, the Learned Single Judge was not
justified in dismissing the writ petition on the
ground of delay and latches.”
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7. The Hon’ble Supreme Court in the case of
TUKARAM KANA JOSHI AND OTHERS THROUGH
POWER-OF-ATTORNEY HOLDER –VS-
MAHARASHTRA INDUSTRIAL DEVELOPMENT
CORPORATION AND OTHERS (2013) 1 SCC 353 at
para 13, 14 and 15 has observed as follows:
“13. The question of condonation of delay is one
of discretion and has to be decided on the basis of
the facts of the case at hand, as the same vary
from case to case. It will depend upon what the
breach of fundamental right and the remedy
claimed are and when and how the delay arose. It
is not that there is any period of limitation for the
courts to exercise their powers under Article 226,
nor is it that there can never be a case where the
courts cannot interfere in a matter, after the
passage of a certain length of time. There may be
a case where the demand for justice is so
compelling, that the High Court would be inclined
to interfere in spite of delay. Ultimately, it would
be a matter within the discretion of the Court and
such discretion, must be exercised fairly and justly
so as to promote justice and not to defeat it. The
validity of the party's defence must be tried upon
principles substantially equitable. (Vide P.S.
Sadasivaswamy v. State of T.N. [(1975) 1 SCC
152 : 1975 SCC (L&S) 22 : AIR 1974 SC 2271],
State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC
566 : AIR 1987 SC 251] and Tridip Kumar Dingal
v. State of W.B. [(2009) 1 SCC 768 : (2009) 2
SCC (L&S) 119] )
14. No hard-and-fast rule can be laid down as
to when the High Court should refuse to exercise
its jurisdiction in favour of a party who moves it
after considerable delay and is otherwise guilty of
laches. Discretion must be exercised judiciously
and reasonably. In the event that the claim made
by the applicant is legally sustainable, delay
should be condoned. In other words, where
circumstances justifying the conduct exist, the
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illegality which is manifest, cannot be sustained
on the sole ground of laches. When substantial
justice and technical considerations are pitted
against each other, the cause of substantial
justice deserves to be preferred, for the other side
cannot claim to have a vested right in the injustice
being done, because of a non-deliberate delay.
The court should not harm innocent parties if their
rights have in fact emerged by delay on the part
of the petitioners. (Vide Durga Prashad v. Chief
Controller of Imports and Exports [(1969) 1 SCC
185 : AIR 1970 SC 769] , Collector (LA) v. Katiji
[(1987) 2 SCC 107 : 1989 SCC (Tax) 172 : AIR
1987 SC 1353] , Dehri Rohtas Light Railway Co.
Ltd. v. District Board, Bhojpur [(1992) 2 SCC 598
: AIR 1993 SC 802] , Dayal Singh v. Union of
India [(2003) 2 SCC 593 : AIR 2003 SC 1140] and
Shankara Coop. Housing Society Ltd. v. M.
Prabhakar [(2011) 5 SCC 607 : (2011) 3 SCC
(Civ) 56 : AIR 2011 SC 2161] .)
15. In H.D. Vora v. State of Maharashtra
[(1984) 2 SCC 337 : AIR 1984 SC 866] this Court
condoned a 30-year delay in approaching the
court where it found violation of substantive legal
rights of the applicant. In that case, the
requisition of premises made by the State was
assailed.”
8. The Hon’ble Supreme Court in the case of
STATE OF UTTAR PRADESH –VS- HARI RAM
[(2013) 4 SCC 280] at para-42 held as follows:
“42. The mere vesting of the land under sub-
section (3) of Section 10 would not confer any
right on the State Government to have de facto
possession of the vacant land unless there has
been a voluntary surrender of vacant land before
18-3-1999. The State has to establish that there
has been a voluntary surrender of vacant land or
surrender and delivery of peaceful possession
under sub-section (5) of Section 10 or forceful
dispossession under sub-section (6) of Section 10.
On failure to establish any of those situations, the
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landowner or holder can claim the benefit of
Section 4 of the Repeal Act. The State
Government in this appeal could not establish any
of those situations and hence the High Court is
right in holding that the respondent is entitled to
get the benefit of Section 4 of the Repeal Act.”
9. The Division Bench of this Court in the case of
MANGALORE DEVELOPMENT AUTHORITY –
VSLEELAVATHI AND OTHERS (ILR 2008 KAR 5059)
at para-9 has held as follows:
“9. Assuming that the Revenue Inspector took
possession of the land, no document is
produced to show that he was the competent
authority under Section 10(6) of ULC Act to
take possession of the land which is declared as
surplus urban land under Section 10(3) of the
Act. The language used therein is “the
competent Authority may take possession of the
vacant land or cause it to be given to the State
Government or to any person duly authorized
by such State Government in this behalf………”
There is no document in the original file of the
State Government to show that possession of
the land was taken by the competent Authority
and given to the State Government. Even if the
alleged mahazar is construed as the document
regarding taking possession of the land in
question, possession was not given to the
Government but was given to Urban
Development Authority. Viewed from any angle,
it cannot be said that possession of the land
was taken by competent authority from the
owner of the land in question and given to the
Government. Therefore, the question of vesting
of the surplus urban land with the Government
did not arise at all. In the circumstances,
Section 3(1) of Repeal Act will not apply to the
land in question.”
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10. The Hon’ble Supreme Court in the case of
GAJANAN KAMLYA PATIL VS. ADDITIONAL
COLLECTOR AND COMPETENT AUTHORITY reported
in AIR-(SCW) 2014 -1359 at para 9 as held as
follows:
“We have, therefore, clearly indicated that it was
always open to the authorities to take forcible
possession and, in fact, in the notice issued under
Section 10(5) of the ULC Act, it was stated that if
the possession had not been surrendered,
possession would be taken by application of
necessary force. For taking forcible possession,
certain procedures had to be followed:
Respondents have no case that such procedures
were followed and forcible possession was taken.
Further, there is nothing to show that the
Respondents had taken peaceful possession, nor
there is anything to show that the Appellants had
given voluntary possession. Facts would clearly
indicate that only de jure possession had been
taken by the Respondents and not de facto
possession before coming into force of the repeal
of the Act Since there is nothing to show that de
facts possession had been taken from the
Appellants prior to the execution of the possession
receipt in favour of MRDA, it cannot hold on to the
lands in question, which are legally owned and
possessed by the Appellants. Consequently, we
are inclined to allow this appeal and quash the
notice dated 17.2.2005 and subsequent action
taken therein in view of the repeal of the ULC Act.
The above reasoning would apply in respect of
other appeals as well and all proceedings initiated
against the Appellants, therefore, would stand
quashed”.
11. In the instant case, the possession is alleged
to have been taken by the Revenue Inspector who is not
the Competent Authority as specified under Section
10(6) of the Act, 1976 to take possession of land which
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has been declared as excess land under Section 10(3) of
the Act, 1976. The possession of the subject land having
been taken by the Revenue Inspector who has no
Authority, the same is non est in the eye of law as held
by the Division Bench of this Court in the case of
Mangalore Urban Development Authority supra.
12. The lawful possession of the subject land having
not been taken as specified under Section 10(5) or
Section 10(6) of the Act, 1976, the petitioner is entitled
for restoration of the subject land as specified under
Section 3(2)(a) and Section 4 of the Repealing Act,
1999, since de jure possession of the subject land was
taken and not de facto possession as held by the Hon’ble
Supreme Court in the case of Gajanan Kamlya Patil
(supra).
13. The State is under an obligation to follow due
process of law for taking possession of immovable
properties of its citizens. The State cannot deprive the
right over immovable property by taking unlawful
possession and continue to be in unlawful possession
stating that the writ petition is hit by delay and laches
when the State Government is a welfare state and
governed by rule of law The petitioner cannot be
deprived of his valuable rights over the immoveable
property when there is violation of his substantial legal
rights. Further, Article 300A of the Constitution of India
specifies that no person will be deprived of his property
save by authority of law. Though it is alleged that the
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subject land is allotted for construction of a school for
deaf and dumb children. No material is placed that the
school has been constructed on the subject land even to
this day. No third party right has been created in favor of
any person and the State Government cannot enrich
itself by claiming to be in possession which is unlawful
and the said unlawful possession does not bestow any
right to the State Government. Hence, the submission of
the learned High Court Government Pleader that the writ
petition is hit by delay and laches is not acceptable, and
delay if any filing this writ petition deserves to be
condoned.
14. In view of preceding analysis, I am of the
considered view that the de-facto possession of the
subject land having not been taken prior to
commencement of the Repealing Act, 1999, the
petitioner is entitled for restoration of the subject land as
specified under Section 3(2)(a) of the Repealing Act,
1999. Accordingly, I pass the following:
ORDER
i) Writ petition is allowed.
ii) It is declared that the proceedings initiated
under the provisions of Act, 1976 in respect of
the subject land stands abated as specified
under Section 4 and petitioner is entitled for
restoration of the subject land as specified
under Section 3(2)(a) of the Repealing Act,
1999.
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Respondent No.3 is hereby directed to
delete the name of the Government from the
revenue records and mutate the name of the
petitioner as owner in possession of the subject
land in the revenue records. The said exercise
shall be concluded within a period of two
months from the date of receipt of certified
copy of this order.”
2. The learned Single Judge follows several
judgments of the Apex Court and that of the Division Benches
of this Court and allows the petition, declares the proceedings
initiated under the Urban Land Ceiling Act, 1976, with respect
to the subject lands, being contrary to law. The order was
passed on 11.10.2022. The appeal is preferred by the State on
07.08.2025 on a delay of 1001 days.
3. The Government Advocate appearing for the State
would submit that the sufficient cause shown in the affidavit
should be looked into as also the merit of the matter and not
only on the ground of delay, this Court should turn down the
appeal filed by the State because it is the State some lenience
should be shown as the administrative missionary will move the
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file from one table to the other. The learned Government
Advocate further contend that the alleged excess land taken by
the State is in consonance with law and the order of the
learned Single Judge does warrant appropriate interference.
Though the learned Government Advocate seeks to project the
matter on its merit, the delay of 1001 days cannot be brushed
aside in the light of the judgments rendered by the Apex Court
on the issue where the Apex Court refuses to condone the
delay even in SLP or appeals filed by the State of 123 days, of
458 days or otherwise. The delay in this case is 1001 days and
the explanation that is offered in the affidavit is as follows:
AFFIDAVIT
I, Basavaraj Ashok Nagaraj, age: 35 years,
working as Tahasildar, Belagavi District, today at
Belagavi do hereby solemnly affirm and state on oath as
follows;
1. I state that I am the appellant No.3 in the
above appeal and hence I know the facts of the case
through records. Hence, I am swearing to this affidavit.
2. The above Appeal is filed by the appellants by
challenging the order dated 11.10.2022 passed by the
learned Single Judge in W.P.No.110817/2014 (ULC).
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3. I state that, averments made in the appeal
memorandum read as part and parcel in order to avoid
repetition in the present affidavit.
4. I state that, Hon'ble Court by Order dated
11.10.2022 was pleased to allow the petition. The
certified copy of the same was applied on 04.01.2025
and the same was delivered on 06.01.2025. Immediately
the Government Advocate after obtaining the certified
copy of the said Judgment passed in
W.P.No.110817/2014 has been forwarded to my office
along with legal opinion on 06/14.02.2023 and thereafter
along with the opinion of the Govt. Advocate, the Govt.
has written letter on 17.05.2023 to the Deputy
Commissioner office to take appropriate steps regarding
the order and thereafter on 15.06.2023 office of the
Deputy Commissioner, Belagavi written letter to the
Govt. seeking instructions regarding steps to be taken as
per the order passed in W.P.No.110817/2014 and
thereafter on 22.12.2023 meeting was called by Urban
Development Department regarding the steps taken
regarding the order and the Assistant/Commissioner,
Belagavi was directed to attend the meeting on
22.12.2023 and Urban Development Department
forwarded meeting proceedings dated 30.01.2024 on
06.02.2024 and thereafter the office of the Deputy
Commissioner, Belagavi written letter to Urban
Development Department to appoint Tahasildar, Belagavi
as Litigation Conducting Officer and accord permission to
file Writ Appeal and the Govt. by order dated 14.09.2024
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accorded permission to file Writ Appeal and office has
received the Govt. order on 30.09.2024 regarding filing
of the Writ Appeal and thereafter the papers were
handed over to the Advocate General office and
Advocate General office has handed over papers/file to
the Govt. Advocate on 20.01.2025 and the Law Officer
drafted the appeal inspite of attending of day to day
court proceedings and thereafter also other office
correspondence to the Government Department officers.
There is a delay in preferring Appeal but the said delay in
filing the above Appeal is not intentional one but it is due
to bonafide and administrative reasons as stated above.
5. I state that, the delay in filing the present
appeal is not intentional one but due to the reasons
stated above.
6. I state that, if the accompanying application
is not allowed, the Appellants will be put to untold
hardship and on the contrary, if the accompanying
application is allowed, the same will not cause any
prejudice to the Respondents.
WHEREFORE , it is most respectfully prayed that
this Hon'ble Court be pleased to condone the delay of
1001 days by allowing the application and hear the same
on merits, in the interest of justice.
Hence, this affidavit.”
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4. The explanation offered for delay of more than 3
years is hardly satisfactory. Except contending that the file was
moved from table to table in the administrative machinery of
the state there is nothing worth in the name of sufficient cause
shown by the State. Merely because it is the State, it does not
mean that the delay in its litigation should be condoned,
although it would depend on facts obtaining in each of the case.
In the case at hand, there is no warrant for us to condone the
delay in the light of the judgments of the Apex Court in the
1
case of ISRAR AHMAD KHAN v. AMARNATH PRASAD
wherein the Apex Court observes as follows:
“ …. …. …
BELATED/DELAYED APPEALS TO
DELAY/DEFEAT IMPLEMENTATION:
27.Delayed filing of appeals should be the
exception, but in recent times, the exception has
practically evolved to become the rule. Orders
passed by the Courts are not complied with for a
long time, and when Contempt Petitions are filed,
belated appeals, with tremendous delay, are
preferred.
28. The (alleged) continuing contumacious conduct
of the defaulting party is sought to be justified on the
mere production of a Diary/Filing/Stamp Reporting
1
2026 SCC OnLine SC 322
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Number showing that an appeal has been preferred, so as
to obtain multiple adjournments in contempt matters.
29.We, in no uncertain terms, deprecate these
practices. It is felt that by such modus operandi,
disobedient litigants act brazenly which has the
further effect of bringing down the authority and
majesty of the Courts and the rule of law,
interfering in the administration of justice. The
same may well, in certain situations, border on
criminal contempt.
30.The High Courts should deal with such
unscrupulous litigants, moreso when they happen
to be ‘State’, within the meaning of Article 12 of the
Constitution, or like bodies, with an iron hand.
Unless the High Courts, so also this Court deal with
these aspects firmly, we run the clear risk of
erosion of the unflinching faith that the ordinary
litigants of this country repose in the Judiciary at all
levels. It is the solemn duty of all of us manning the
Courts across the hierarchy to ensure that the
public faith never wavers .”
4. A little earlier to the afore-quoted judgment, the
Apex Court in the case of STATE OF ODISHA v. MANAGING
2
COMMITTEE OF NAMATARA GIRLS HIGH SCHOOL , held as
follows:
“ …. …. ….
7. It is noted that there is a delay of 123
days in filing the special leave petition and a further
delay of 96 days in re-filing the same after curing
defects. In the application for condonation of delay,
the State of Odisha seeks to explain the delay by
pleading as follows:
2
2026 SCC OnLine SC 191
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“3. It is submitted that the Petitioner on
receipt of order of the Hon'ble High Court vide
order dated 26.04.2023 and order dated
21.02.2025 in F.A.O. No. 582 of 2015 and in I.A.
No. 126 of 2025 in F.A.O. No. 582 of 2015 the
petitioner considered the matter and sent it to
the law department opined that it is a fit case for
filing the present SLP against the impugned
judgments dated 26.04.2023 and order dated
21.02.2025.
4. That the delay in filing the appeal
was on account of procedural delay in
obtaining approval from the higher
authority. The delay caused is not deliberate
and intentional.”
8. Ms. Sanjana Saddy, learned counsel
appearing for the State of Odisha, submits that the
delay in presenting the special leave petition is not
deliberate and having regard to the long line of
decisions of this Court advocating a liberal
approach when an authority under Article 12 of the
Constitution is the petitioner seeking condonation
of delay, she urges that the delay be condoned and
this Court may direct the High Court to examine the
challenge to the order dated 30th December, 2013 of the
Tribunal on merits, upon revival of the appeal.
9. We had, upon hearing Ms. Sanjana, started
dictating an order of dismissal of the special leave
petition. It was then that she prayed for withdrawal of the
special leave petition. We had so recorded. However,
when we were about to rise for the day, Ms. Sanjana
prayed for recall of the order of dismissal of the special
leave petition as withdrawn; she also submitted, on
instructions, that the State of Odisha would invite a
detailed order with reasons in support of dismissal of the
special leave petition.
10. We recalled the order dismissing the special
leave petition as withdrawn and, instead, dismissed the
same as time-barred considering paragraphs 3 and 4 of
the application for condonation of delay, excerpted above,
with the observation that reasons would follow.
11. We now proceed to assign our reasons.
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12. No cause, much less sufficient cause, has
been shown for exercise of discretion in favour of the
State of Odisha. The nature of explanation in the
application for condonation of delay is such that with
much ado, the proceedings could be closed.
13. However, since there is a long line of
decisions of this Court propounding the law that the
expression ‘sufficient cause’ employed by the legislature
in Section 5 of the Limitation Act, 1963 is adequately
elastic to enable the courts to apply the law in a
meaningful manner which subserves the ends of justice
and in view of the submission of Ms. Sanjana, we have
considered it appropriate to consider the matter in some
depth.
14. Almost four decades back, in Collector,
Land Acquisition, Anantnag v. Mst Katiji , a
coordinate Bench noting that the justifiably liberal
approach which this Court has been adopting in
matters instituted before it is not being followed by
the courts lower in the hierarchy, mandated that a
justice oriented approach is indeed called for when
a ‘State’ seeks condonation of delay as
distinguished from ‘a private party’.
15. Close on the heels of Katiji (supra),
Hon'ble Justice M.N. Venkatachaliah speaking for
the coordinate Bench in G. Ramegowda v. Land
Acquisition Officer had referred to Katiji (supra) in
paragraph 14 and quoted the following passage
therefrom:
“When substantial justice and
technical considerations are pitted against
each other, cause of substantial justice
deserves to be preferred for the other side
cannot claim to have vested right in
injustice being done because of a non-
deliberate delay
…
It must be grasped that judiciary is
respected not on account of its power to
legalise injustice on technical grounds but
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because it is capable of removing injustice
and is expected to do so.”
Immediately thereafter, in paragraphs 15 to 17, it
was held as under:
15. In litigations to which Government is a
party there is yet another aspect which, perhaps,
cannot be ignored. If appeals brought by
Government are lost for such defaults, no person
is individually affected; but what, in the ultimate
analysis, suffers is public interest. The decisions
of Government are collective and institutional
decisions and do not share the characteristics of
decisions of private individuals.
16. The law of limitation is, no doubt, the
same for a private citizen as for governmental
authorities. Government, like any other litigant
must take responsibility for the acts or omissions
of its officers. But a somewhat different
complexion is imparted to the matter where
Government makes out a case where public
interest was shown to have suffered owing to
acts of fraud or bad faith on the part of its
officers or agents and where the officers were
clearly at cross-purposes with it.
17. Therefore, in assessing what, in a
particular case, constitutes “sufficient cause” for
purposes of Section 5, it might, perhaps, be
somewhat unrealistic to exclude from the
considerations that go into the judicial verdict,
these factors which are peculiar to and
characteristic of the functioning of the
government. Governmental decisions are
proverbially slow encumbered, as they are, by a
considerable degree of procedural red tape in the
process of their making. A certain amount of
latitude is, therefore, not impermissible. It is
rightly said that those who bear responsibility of
Government must have “a little play at the
joints”. Due recognition of these limitations on
governmental functioning — of course, within
reasonable limits — is necessary if the judicial
approach is not to be rendered unrealistic. It
would, perhaps, be unfair and unrealistic to put
government and private parties on the same
footing in all respects in such matters. Implicit in
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the very nature of governmental functioning is
procedural delay incidental to the decision-
making process. In the opinion of the High Court,
the conduct of the law officers of the Government
placed the Government in a predicament and that
it was one of those cases where the mala fides of
the officers should not be imputed to
Government. It relied upon and trusted its law
officers.
…
16. Katiji (supra) and Ramegowda (supra)
were consistently followed by this Court until
adoption of a different and seemingly strict
approach while dealing with applications for
condonation of delay during the last decade and a
half became discernible starting with the decision in
Postmaster General v. Living Media India Limited ,
where a delay of 427 days in filing the relevant
special leave petition was not condoned. University
of Delhi v. Union of India is another decision (of a
three-Judge Bench of this Court) where delay of
916 days was not condoned. While upholding the
decision of the relevant high court under challenge
refusing to condone the delay of 5659 days in
presentation of an appeal under Section 54 of the
Land Acquisition Act, 1894 by the heirs of a
deceased landowner, a coordinate Bench in
Pathapati Subba Reddy v. Collector(LA) very
recently reiterated that the law of limitation is
founded on public policy, the object is that a legal
remedy is put to an end so that no litigation
remains pending for an indefinite period. It was
also held, departing from the earlier view, that the
merits of the case cannot be considered at the
stage of considering the application for condonation
of delay.
17. Indeed, one of us [Dipankar Datta] in Sheo
Raj Singh v. Union of India authoring the judgment for a
coordinate Bench adopted the view taken in Katiji
(supra), Ramegowda (supra) and a host of other
decisions following the same while not interfering with an
order of condonation of delay passed by the relevant high
court. However, it was observed that a distinction ought
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to be drawn between an ‘explanation’ and an ‘excuse’ that
is proffered as cause for condonation of delay. It was
also emphasized that a different approach has to be
adopted while this Court is considering an
application for condonation of delay in presentation
of an appeal/application and when it sits in appeal
over a discretionary order of the high court
granting the prayer for condonation of delay. In the
case of the former, whether to condone or not
would be the only question whereas in the latter,
whether there has been proper exercise of
discretion in favour of grant of the prayer for
condonation has to be examined.
18. However, what perhaps remained unnoticed
in any of the decisions post Katiji (supra) and
Ramegowda (supra) adopting a liberal approach is the
exasperation and consequent lament expressed by none
other than Hon'ble M.N. Venkatachaliah, CJI. in course of
authoring a brief order in Commissioner of Wealth Tax,
Bombay v. Amateur Riders Club, Bombay and
admonishing officers of the “revenue” in not acting with
promptitude. This order was made within six years of the
decision in Ramegowda (supra). We can do no better than
quoting the same in its entirety hereunder:
1. We have heard Shri S.C. Manchanda,
learned senior counsel for the Revenue.
2. This special leave petition filed on
November 16, 1993 is delayed by 264 days. For
quite some time in the past, this Court has been
making observations as to the grave prejudice
caused to public interest by appeals brought on
behalf of the Government being lost on the point
of limitation. Such observations have been made
for over a few years in the past. But there seems
to be no conspicuous improvement as is apparent
in the present petition which is filed in November
1993. The explanation for the delay, had better
be set out in petitioner's own words:
“(g) The Advocate-on-Record got the
special leave petition drafted from the drafting
Advocate and sent the same for approval to the
Board on June 24, 1993 along with the case file.
(h) The Board returned the case file to the
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Advocate-on-Record on July 9, 1993 who re-sent
the same to the Board on September 20, 1993
requesting that draft SLP was not approved by
the Board. The Board after approving the draft
SLP sent this file to CAS on October 1, 1993.”
3. This explanation is incapable of
furnishing a judicially acceptable ground for
condonation of delay. After the earlier
observations of this Court made in several cases
in the past, we hoped that the matters might
improve. There seems to be no visible support for
this optimism. There is a point beyond which
even the courts cannot help a litigant even if the
litigant is Government which is itself under the
shackles of bureaucratic indifference. Having
regard to the law of limitation which binds
everybody, we cannot find any way of granting
relief. It is true that Government should not be
treated as any other private litigant as, indeed, in
the case of the former the decisions to present
and prosecute appeals are not individual but are
institutional decisions necessarily bogged down
by the proverbial red-tape. But there are limits to
this also. Even with all this latitude, the
explanation offered for the delay in this case
merely serves to aggravate the attitude of
indifference of the Revenue in protecting its
common interests. The affidavit is again one of
the stereotyped affidavits making it susceptible
to the criticism that the Revenue does not seem
to attach any importance to the need for
promptitude even where it affects its own
interest.
4. The application for condonation of delay
is, accordingly, dismissed. The special leave
petition is, therefore, dismissed as barred by
time. (emphasis ours)
19. Reading Ramegowda (supra) and
Amateur Riders (supra), one after the other, leaves
none in doubt that it did not take much time for this
Court to lose hope. It is absolutely clear that the
law was laid down in Ramegowda (supra),
following Katiji (supra), with much optimism that
matters would improve. Their Lordships, however,
found no visible support for such optimism and the
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Court's patience having been tested to the extreme
limit, held that there is a point beyond which even
the courts cannot help a litigant even if the litigant
labouring under the shackles of bureaucratic
indifference is the Government.
20. We have found the State of Odisha to be
utterly lethargic, tardy and indolent not only before
the High Court but also before this Court.
Notwithstanding that its appeal was dismissed as
time-barred by the High Court, this Court has been
approached by the State of Odisha four months
after expiry of the period of limitation.
21. Condonation of delay cannot be claimed
as a matter of right. It is entirely the discretion of
the Court whether or not to condone delay. Despite
all the latitude that is shown to a “State”, we are of
the clear opinion that the cause sought to be shown
here by the State of Odisha is not an explanation
but a lame excuse. No case for exercise of
discretion has been set up. ”
(Emphasis supplied at each instance)
5. The Writ Appeal is dismissed.
Pending interlocutory applications, if any, stand disposed
as they do not survive for consideration.
Sd/-
(M.NAGAPRASANNA)
JUDGE
Sd/-
(HEMA KULKARNI)
JUDGE
kmv
Ct:vh