C.N. NAGARAJA DECEASED BY L.RS. AND OTHERS Vs. THE CHIEF SECRETARY, ZILLA PARISHAD, BANGALORE RURAL DISTRICT AND OTHERS

JUDGEMENT

(1.) THESE writ petitions are directed against the order dated 3.1.1992 passed by the Common Standing Committee, Zilla Parishad, Bangalore Rural District, Bangalore, (Respondent -2 herein) and endorsement dated 20.1.1992 issued by the Chief Secretary, Zilla Parishad, Bangalore Rural District, Bangalore, (Respondent -1 herein) vide Annexures 'G' and 'H' respectively to the writ petitions.

(2.) THE facts of the case in nutshell are: According to the Petitioners' case, by a resolution dated 28.2.1989 passed by the Nandagudi Mandal Panchayat, the Petitioners have been granted sites bearing Nos. 24, 25, 26 and 27 measuring 40' x 15' (each) formed in Sy. No. 122 situated at Chikkondahalli Village, Kasaba Hobli, Hosakote Taluk, Bangalore Rural District, Bangalore, and the plans for construction of houses were approved by the Mandal Panchayat. According to the Petitioners, hakkupatras were also issued in favour of the Petitioners vide Annexure 'C' to the writ petition. The Petitioners' case is that after getting hakkupatras and having paid the tax the Petitioners made application for licence to put up construction of residential house and the licence was granted on 18.7.1991. The Petitioners' case is that after obtaining the licence from the Mandal Panchayat, the Petitioners have started laying foundation in their respective sites. When this was the state of affairs, it appears that present Respondents 4 to 13 have filed the appeal before the Zilla Parishad, Bangalore Rural District, Bangalore, in No. SK/96/91/92 under Section 273 of the Karnataka Zilla Parishad Act, on the grounds mentioned in the memorandum of appeal. That by order dated 3.1.1992 the Samanya Sthai Committee of Respondent -1 without considering the objections filed by the Petitioners, as well as without giving opportunity of hearing to them the appellate authority passed the order cancelling the allotment of sites made in favour of the Petitioners by the Nandagudi Mandal Panchayat. Feeling aggrieved from the order dated 3.1.1992 passed by the second Respondent and the endorsement issued by the first Respondent vide Annexures 'G' and 'H' to the writ petitions the Petitioners have filed these writ petitions under Articles 226 and 227 of the Constitution of India.

(3.) THE learned Counsel for the Petitioners has contended that the appeals in all these cases were time barred. He contended that sites were allotted to the Petitioners on 28.2.1989 and the appeals were filed by the Respondents 4 to 13 before the appellate authority on 21.11.1991. The learned Counsel contended that under the relevant rules the appeals could be filed within 30 days and he invited my attention to the provisions of Section 273 of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983, as well as Rule 2 of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats (Limitation for Appeals) Rules, 1985. The learned Counsel contended that the limitation prescribed for filing the appeal is only 30 days and in this case the appeal had been filed long after the expiry of the period of two and half years from the date of the allotment of sites. The learned Counsel contended that the appeal being time barred, the appellate authority had no jurisdiction to pass the order as it had no jurisdiction to entertain the time barred appeal. The learned Counsel for the Petitioners contended that when the law provided and granted a right of a party to file the appeal before the appellate authority, but subject to the conditions including the law of limitation. The intention of law is that the appeal had to be filed within the period of limitation prescribed under the Act. But it provides that by necessary implication if the appeal not been filed within the time prescribed, the appellant is to lose his right of filing the appeal and the appellate authority could not entertain the appeal. The learned Counsel contended that Section 5 of the Limitation Act is not applicable to the appeals under this Act and apart from that there is nothing on record to show that the appellate authority had applied its mind to the question of limitation, nor there is nothing on record to indicate that any sufficient cause or explanation for the delay has been shown and the appellate authority condoned the delay. The learned Counsel submitted that in view of the above the impugned orders are without jurisdiction, illegal null and void and the same is liable to be quashed. The learned Counsel submitted that no opportunity of hearing was provided to the Petitioners. The learned Counsel for the Petitioners has raised certain other contentions as well but there is no need to go into those contentions as prima facie it appears that the first contention by itself is sufficient to decide the matter. On behalf of the Respondents Smt. Suguna, Advocate, holding brief for Sri S. Channaraya Reddy, learned Counsel for Respondents 4 to 9 and 12 contended that the appellate authority when entertained the appeal and decided the same on merits it should be deemed to have condoned the delay. She further contended that the question of limitation appears to have not pressed by the other side. She contended that opportunity of hearing was given to the Petitioners and the Petitioners have filed objections to the appeal. She contended that Section 5 of the Limitation Act, no doubt, in view of Section 29 of the Limitation Act, 1963 is applicable to the present case. So, when the authority dealt with the appeal on merits, it should deemed to have been considered the question of limitation and have condoned the delay.