K.S. UPADHYA Vs. COMMISSIONER

JUDGEMENT

(1.) The petitioner is before this Court assailing the order dated 15-6-2013 passed in Miscellaneous No. 10-A/2012-13/ADM/7 RP10/2010-11 by the first respondent as also the order dated 19-11-2007 passed by the second respondent. The petitioner is also seeking for a mandamus to direct the second respondent to appoint the petitioner as a Managing Hereditary Trustee of Sri Mahishamardini Temple, Kadiyali, Udupi. The brief facts to be noticed is that the petitioner claims that he is a Hereditary Trustee in respect of Sri Mahishamardini Temple, Kadiyali, Udupi. With regard to the order dated 19-11-2007 (Annexure-B), wherein the petitioner's claim had been declined, the petitioner had assailed the same before this Court in W.P. No. 6255 of 2008. This Court while disposing of the petition on 2-4-2009 was of the view that the said order is to be questioned in a revision petition as contemplated in law. Accordingly, the petitioner had filed the revision petition before the first respondent. During the pendency of the petition/the same came to be dismissed for non-prosecution by the order dated 5-5-2012. The petitioner filed miscellaneous petition on 17-7-2012 seeking restoration of the revision petition and to consider the same merits. The first respondent though got the miscellaneous petition listed along with the revision petition, the consideration on merits was not made, but the miscellaneous petition as well as the revision petition were once again dismissed by the order dated 15-6-2013 (Annexure-A). It is in that circumstance, the petitioner is before this Court.

(2.) Having heard the learned Counsel for the parties, I have perused the petition papers. The fact that the petitioner claiming to be aggrieved by the order dated 19-11-2007 was before this Court in an earlier petition in W.P. No. 6255 of 2008 is evident from the records. Since this Court at the first instance was of the view that the issues raised would have to be considered by the first respondent, certainly that aspect of the matter would require consideration by the first respondent. It is no doubt true that the first respondent had dismissed the revision petition for non-prosecution on 5-5-2012 and the miscellaneous petition was filed after about two months i.e., on 17-7-2012. Notwithstanding the same, the question is as to whether the first respondent was justified in the manner he has proceeded subsequently.

(3.) Even though there is a delay of two months in filing the miscellaneous petition for recalling, what is necessary to be noticed is that a valuable right of the petitioner claiming to be a hereditary trustee is what was required to be considered one way or the other by the first respondent, more particularly in a circumstance where this Court at the first instance had relegated the petitioner to file a revision before the first respondent. In such circumstance, when such right was to be determined, the first respondent ought to have condoned the delay in filing the miscellaneous petition and thereafter should have considered the revision petition on its merits. Instead, the first respondent though had secured the miscellaneous petition to be listed along with the revision petition, has ultimately dismissed the revision petition once over again not being satisfied with the explanation in the miscellaneous petition for filing the application for recall. In such circumstance, when valuable right of the party is involved, I am of the opinion that the order as presently made by the first respondent dated 15-6-2013 which is impugned at Annexure-A would not be sustainable. Accordingly, the same is quashed. A direction is issued to the first respondent to restore the revision petition in R.P. No. 10 of 2010-2011 and consider the same on its merits. The petitioner shall now appear before the first respondent on 10-3-2014 at 3 p.m., as the first date of appearance. The first respondent shall thereafter regulate the proceedings and conclude the same in accordance with law.