Ashok Kumar vs State Of U.P. And Others
2018 Latest Caselaw 355 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 5
 

 
Case :- WRIT - B No. - 37132 of 2012
 

 
Petitioner :- Ashok Kumar
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- M.S. Pandey,Harish Chandra Dwivedi
 
Counsel for Respondent :- C.S.C.,Shyam Lal Yadav
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

The petitioner has preferred this writ petition for issuance of a writ of Certiorari to quash the order passed by the respondent no. 2, Board of Revenue (for brevity "the Board") dated 5.7.2012 whereby it has rejected the restoration application of the petitioner only on the ground that it was moved after two years.

Briefly stated the facts are that the petitioner claims that in the proceedings under Section 33/39 of the U.P. Land Revenue Act, 1901 the respondent nos. 4 to 7 had succeeded to get their names recorded in revenue papers by an order dated 26.6.1990 passed by the Tehsildar. The grievance of the petitioner is that the said order has been secured on the basis of fabricated documents and a fictitious compromise.

The petitioner and the respondent nos. 4 to 7 had moved an application to recall the said order passed by the Sub-Divisional Officer, Allahabad. According to the the petitioner, the said order dated 26.6.1990 was passed without jurisdiction. However, recall applications were rejected by the Sub-Divisional Officer on 12.12.1995.

Dissatisfied with the order of the Sub-Divisional Officer, the petitioner preferred a revision before the third respondent being Revision No. 33 of 1995 (Ashok Kumar Vs. Buddhu and others). The Revisional Court has noted the fact that the stand of the petitioner was that on the date of compromise he was minor hence the compromise was null and void. The revision of the petitioner was allowed and the order dated 26.6.1990 was set aside by order dated 25.11.1998. Later, a reference was made on 19.6.2002 to the Board.

It is stated that on 30.3.2009 the date was fixed before the Board but when the matter was taken up, the learned counsel for the petitioner was not present hence the matter was dismissed for non-prosecution. The petitioner had thereafter moved a restoration application supported by an affidavit after two years i.e. on 7.9.2011. The restoration application has been rejected by the Board only on the ground that it was filed after the delay of two years. The Board was not satisfied with the explanation furnished by the petitioner for the said delay.

I have heard Sri M.S. Pandey and Sri Harish Chandra Dwivedi, learned counsel for the petitioner and Sri Shyam Lal Yadav, learned Advocate who has put in appearance on behalf of the private respondents.

Learned counsel for the petitioner submits that for the bonafide reasons the delay had occurred, which the petitioner had explained in Section-5 Application supported by an affidavit. It is stated that at the time the matter was called out, learned counsel for the petitioner was busy in some other Court hence he could not attend the case. As regards moving the application after two years the learned counsel for the petitioner has drawn the attention of the Court to various paragraphs of the affidavit filed by the petitioner in support of Section-5 Application. He has placed reliance on the judgment of the Supreme Court in the case of Ramji Dass and others v. Mohan Singh, 1978 ARC 496.

Learned counsel for the respondents Sri Yadav submits that no proper explanation had been furnished by the petitioner in his Section-5 Application hence the Board was justified in rejecting it. He further submits that Section-3 of the Limitation Act provides that any application would not be entertained after the delay. He lastly urged that the Board has rejected the delay condonation application hence no interference is warranted under Article 226 of the Constitution of India.

I have considered the submissions of learned counsel for the parties and perused the record.

It is a common ground that the proceedings are arising out of mutation proceedings under Section 33/39 of the U.P. Land Revenue Act. The revision of the petitioner was allowed on the ground that at the time of compromise between the parties the petitioner was minor hence the revisional court took the view that the compromise was null and void. Later, a reference was made to the Board.

A perusal of the order dated 30.3.2009 indicates that the said order was not passed on merits but the case was simply dismissed for non-prosecution. It is true that the petitioner has moved a restoration application after a lapse of two years but in the affidavit he has given detailed reasons for moving application after such delay.

It is mentioned that the reader of the Court informed the counsel that the matter has been reserved and thereafter the file was missing so the learned counsel for the petitioner could not make inspection of the file.

Be that as it may, the affidavit filed by the petitioner was uncontroverted. No counter affidavit was filed by the respondents contradicting the facts mentioned in the affidavit hence in my view it was not appropriate to disbelieve the statement made on affidavit in support of Section-5 Application.

Yet there is another aspect of the matter that the Board has rejected the restoration application by a cryptic order and no reason has been assigned in support of the conclusion of the Board that it was not satisfied with the reasons mentioned in the affidavit.

It is trite law that administrative and judicial orders must record reasons in support of its conclusion. Thus the Court is bound to give reasons. One of the fundamentals of sound administration of justice delivery system is that if the reasons are recorded, it would show proper application of mind and if the order is challenged in superior court, it is easy to discern the grounds on which the order has been made. It also ensures transparency and objectivity in passing the order. A person against whom order is passed must know why his claim is rejected. Reference may be made to the judgments of the Supreme Court in the case of S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, and Union of India v. Mohan Lal Capoor and others, (1973) 2 SCC 836, which has been consistently followed by the Supreme Court. Recently, the Supreme Court in the case of Kranti Associates Private Limited Vs. Masood Ahmed Khan, (2010) 9 SCC 496 has held that the reasons are the heart and soul of the order and if there is no reason the order becomes lifeless.

Recently, the Supreme Court in the cases of State of Uttar Pradesh and others v. Arvind Kumar Srivastava and others, (2015) 1 SCC 347; N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, and S. Ganesharraju (dead) Through Lrs. and another, (2013) 11 SCC 341 has held that the provisions of the Limitation Act are not to destroy the rights of the parties and they should be liberally construed.

Insofar as the delay in filing the recall application is concerned, the Board has rejected the delay condonation application on the ground that sufficient cause has not been shown. The petitioner has brought on record his delay condonation application. I have perused the same. Though the Board has exercised it discretion while considering the said application but I find that its view is not in view of settled law on the subject.

Long back Justice Krishna Aiyer speaking for the Supreme Court in the case of Ramji Dass and others v. Mohan Singh, 1978 ARC 496 has held that as far as possible, Courts' discretion should be exercised in favour of hearing and not to shut out hearing. In that case the appeal was filed against an ex parte decree after eight years and the District Court as well as the High Court had rejected the matter on the ground of delay. However, setting aside the order of the High Court, Hon'ble Justice V.R. Krishna Iyer observed as under:

"... we are inclined to the view that, as far as possible, Courts' discretion should be exercised in favour of hearing and not to shut out hearing. Therefore, we think that the order of the High Court should not have been passed in the interest of Justice which always informs the power under S. 115 C.P.C. ..."

In the case of Collector, Land Acquisition Anantnag and another v. Mst. Katiji and others, AIR 1987 SC 1353 the Supreme Court has held that no one has vested right in injustice being done because of non-deliberate delay. If substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred.

In view of the principle laid down in the above case, I find that the order of the Board of Revenue dated 5.7.2012 is liable to be set aside. Accordingly, it is set aside.

The matter is remitted to the Board to pass a fresh order in the light of the law laid down by the Supreme Court mentioned above expeditiously.

The writ petition stands allowed accordingly.

No order as to costs.

Order Date :- 4.5.2018

Digamber