Smt. Jayamma W/O Siddegowda Vs. the Assistant Commissioner, Mandya Sub-division, - Court Judgment

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- [ k.n. keshavanarayana, j.] indian electricity act, 1910 - sections 39 and 44 - offences under - tampering electric meter - complaint - charges - order of acquittal on technical grounds -finding of the trial judge that the prosecution launched on the basis of the complaint lodged by p.w.4 who was not an authorised person in terms of section 50 of the act -scope of section 50 of the act - held, the prosecution launched on the basis of the complaint lodged by the official of the electricity board, who was working in the vigilance squad and who detected theft of electrical energy, was in fact a prosecution launched at the instance of the state or electricity board. - the prosecution launched at the instance of any official of the electricity board who detected the theft of electrical energy was in reality a prosecution launched at the instance of the electric supply company within the meaning of section 50 of the act - further held, in the case on hand also, p.w.4 is an employee of the k.p.t.c.l. working as an assistant executive engineer in the vigilance squad. - the prosecution launched on the basis of the complaint lodged by p.w.4 was in reality a prosecution launched at the instance of the k.p.t.c.l. therefore, the prosecution launched in this case was at the instance of one of the persons named in section 50 of the act, as such, it was competent. - under these circumstances, the court below is not justified in holding that the prosecution was not competent, therefore, the acquittal recorded on that basis is illegal and is liable to be set aside. - on facts, held, the learned trial judge accepted the evidence of p.w.s 1 to 4 and the finding recorded is justified - there are no grounds to differ from the said finding. in fact, the respondent/accused has not questioned the correctness of the said finding. - since the amendment of section 39 was subsequent to the detection of the offence in this case and also subsequent to filing of the charge sheet, the amended section cannot be applied to the case on hand. under these circumstances, the respondent/accused is required to be sentenced in terms of the unlamented section 39 of the act. - sentence is modified in terms unlamented section 39 of the act - indian electricity act, 1910 - section 50 - the phrase "at the instance" referred in the provision - discussed. (paras 12,13,14,15,16,18,19) criminal appeal is allowed.a.n. venugopala gowda, j.1. appellant had filed, writ petition questioning an order dated 26.05.2009 (annexure - g) passed by the 2nd respondent - deputy commissioner, whereunder, the appeal filed by the 4th respondent herein, against an order passed by the 1st respondent herein, was allowed. the writ petition having been rejected, this appeal has been filed.2. two acres of land in survey no. 245 of kuduregundi village in maddur taluk of mandya district was granted to the father of 4th respondent, who was a member of schedule caste community. pursuant to the grant, a saguvali chit was issued, which has a condition of non-alienation for a period of 10 years with effect from 21.05.1955. appellant's husband, siddegowda purchased the said land under two sale deeds dated 08.08.1966 and 11.09.1967. 4th respondent filed a petition before the 1st respondent to declare the sale deeds as null and void, in exercise of the jurisdiction under the karnataka scheduled caste and schedules tribes (prohibition of transfer of certain lands) act, 1978 (for short 'the act').3. the 1st respondent having conducted an enquiry, by an order dated 30.01.1990 (annexure - f) rejected the petition of the 4th respondent. challenging the said order, 4th respondent filed before the 2nd respondent, an appeal under section 5-a of the act. since there was delay in filing the appeal, an application seeking condonation of delay was also filed. the 2nd respondent having notified the appellant, upon consideration of the application for condonation of delay and the appeal, having found merit in the appeal, passed an order dated 26.05.2009 (annexure - g), where under the said sale deeds in favour of the appellant's husband were declared as null and void and the assistant commissioner was directed to resume the land and restore the same to the legal heirs of the original grantee i.e., the 4th respondent herein, which order was questioned by the appellant, in the writ petition.4. learned single judge, having considered the matter, has held that, no exception can be taken to the reasons, findings and conclusions arrived at by the appellate authority in the order impugned in the writ petition and since the delay in filing the appeal has been condoned by the appellate authority in exercise of the discretion, which was not shown to be malafide or illegal, has refused to interfere with the matter and has rejected the writ petition.5. sri r.s. ravi, learned advocate appearing for the appellant raised two contentions. firstly, the saguvali chit dated 25.05.1955 contains the non-alienation condition of 10 years and the sale deeds being after the expiry of the non-alienation period i.e., 08.06.1966 and 11.09.1967, there is no contravention of the terms of the grant and hence the 2nd respondent - appellate authority, has committed error and illegality in declaring the sale deeds to be null and void and in allowing the appeal as per the order dated 26.05.2009 (annexure-g). secondly, the 2nd respondent - appellate authority has erred in condoning the inordinate delay of about 11 years in filing the appeal and the learned single judge has not considered the matter in proper perspective.6. we have perused the record and carefully considered the submissions made by the learned advocate for the appellant. the points that arise for our consideration are:1. whether the 2nd respondent is justified in declaring the sale deeds dated 08.08.1966 and 11.09.1967 executed in favour of the appellant's husband, as null and void?2. whether the 2nd respondent - appellate authority is justified in condoning the delay while allowing the appeal?7. indisputedly, the land was granted under a darkhast to the father of the 4th respondent. pursuant to the grant, saguvali chit was issued, which has the condition of non-alienation of 10 years with effect from 21.05.1955. the granted land was sold under two separate sale deeds dated 08.08.1966 and 11.09.1967. the 1st respondent was approached by the heir of the grantee, to declare the said sale deeds as null and void, in view of the attraction of the provisions of the act to the granted land, which belong to the members of scheduled castes and scheduled tribes communities. the 1st respondent passed an order rejecting the claim, an appeal under section 5-a of the act was filed, with an application for condonation of delay. notice of the appeal was issued to the present appellant. objections were filed to the application seeking condonation of delay. after hearing the learned counsel on both sides, the appellate authority has found the appeal to be meritorious and as a result, condoning the delay, has decided the appeal on its merit. whether or not, there is sufficient cause for condonation of delay is a question of fact, dependent upon the facts end circumstances of the particular case. refusal to condone the delay, if any, if were to result in grave miscarriage of justice, that itself would be a ground to condone the delay. appellate authority has found merit in the appeal. had not the delay been condoned, it would have been a case of grave miscarriage of justice. hence, the discretion exercised to condone the delay cannot be faulted. it is well settled that, the expression 'sufficient cause' is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice - that being the life-purpose for the existence of the institution of courts. this court has adopted liberal approach in matters which are filed after certain lapse of time belatedly, where there is merit. when substantial justice and technical considerations are pitted against each other, cause of substantial justice, have always been preferred. appellant has not shown any culpable negligence or malafide act on the part of the 4th respondent in filing the appeal belatedly. 4th respondent has not gained in any manner by filing the appeal belatedly. there is absolutely no material showing benefit on the part of the 4th respondent in approaching the appellate authority, belatedly. in the said view of the matter, the appellate authority having found merit in the appeal, is justified in condoning the delay and deciding the matter on merit. the exercise of jurisdiction by the court/competent authority in the matter of condonation of delay being discretionary, having been properly exercised in a matter involving merit, has not been rightly interfered with by the learned single judge before whom the ground with regard to the delay in filing the appeal before the 2nd respondent was urged.8. from the record it is clear that, the grant was made in favour of the father of 4th respondent, who was a member of the scheduled caste. the grant was free of consideration. rule 43(8) of the land grant rules stipulate that the grant made free of consideration was net alienable for a period of 20 years from the date of grant i.e., in respect of the grants made between 04 08.1953 to 05.07.1955. the grant in favour of the 4th respondent has been made on 25.05.1955 and hence the non-alienation period in terms of the rules is 20 years. always the law/rules prevail and not the executive acts, when there is a conflict. the sale deeds being within the period of 20 years, were in violation of land grant rules. as a consequence, the appellate authority having examined the appeal and finding that the two sale deeds executed by the original grantee in favour of the husband of the appellant being null and void, has declared the same as null and void. the reasons assigned by the 2nd respondent to set-aside the order passed by the 1st respondent, keeping in view the facts and circumstances of the case, are just and legal. there is no infirmities, either factual or legal, in the order passed by the 2nd respondent in allowing the appeal (annexure-g).for the aforesaid reasons, we are of the opinion that, the appeal has no merit and the order passed by the learned single judge, upholding the order passed by the 2nd respondent impugned in the writ petition, does not call for any interference in this writ appeal. writ appeal stands dismissed accordingly.misc.w. no. 273/2010 filed for stay of the impugned order does not survive for consideration.