SITARAM Vs. ASSISTANT COMMISSIONER JAMAKHANDI

JUDGEMENT

(1.) Heard Smt. Sona, learned Counsel for the petitioners, Sri S.V. Tilgul, learned counsel for the caveator/respondent and Smt. Meena Kumari, the learned High Court Govt. Pleader.

(2.) This petition is directed against the judgment and order dated 24-12-94 passed by the Assistant Commissioner, Jamkhandi Sub-Division, Bijapur in No. RTS AP 35- 36/90, whereby the learned Commissioner has cancelled the mutation entry Nos. 15226 and 15227 of R. S. No. 297:1-2:2 and R. S. No. 181:2. In brief the grievance of the petitioner as mentioned in the writ petition as well as the arguments made by the petitioners counsel, Smt. Sona, that the Appellate Authority has acted illegally and without jurisdiction as the appeal had been filed long after the making of the mutation entries in question. The learned counsel, Smt. Sona, pointed out that there had been delay of almost eight years. She further submitted that the learned Assistant Commissioner acted illegally in condoning the delay by not applying his mind to the objections which had been filed by the petitioners in the matter of condonation of delay i.e. to the application for donation of delay and the affidavit thereto. The learned Counsel invited my attention to the allegations at paragraph-6 of the writ petition:

(3.) These allegations made in paragraph-6 of the writ petition have not been controverted or denied in the statement of objections filed on behalf of respondents Nos. 2 and 3. It is well settled principle of law as settled by the Supreme Court in very many cases including the case of Smt. Naseem Bano v. State of U.P. reported in AIR 1993 SC 2592 that if the averments made in the writ petition have not been controverted by filing counter affidavit, then High Court has to proceed on the basis of the averments made in the writ petition taking them to have been admitted by the respondents. The material portion of the Supreme Court decision reads as under: