Sardar Ahmad (Since Deceased And ... vs Additional Commissioner, Meerut ...
2019 Latest Caselaw 1951 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 14.11.2018
 
Delivered on 29.03.2019
 
Court No. - 34
 

 
Case :- WRIT - C No. - 1523 of 1987
 
Petitioner :- Sardar Ahmad (since deceased and substituted by LRs.) & Ors.
 
Respondent :- Additional Commissioner, Meerut Division & Ors.
 
Counsel for Petitioner :- V P Mathur,Mrs Swati Agrawal
 
Counsel for Respondent :- SC,Awadhesh Kumar Mishra
 

 
Hon'ble Sudhir Agarwal,J.

In re:

Civil Misc. Delay Condonation Application no.319462 of 2010

Civil Misc. Substitution Application No.319464 of 2010

1. This is an application for substitution of legal heirs of respondents 4 to 13 along with delay condonation application.

2. Heard Mrs. Swati Agrawal, learned counsel for applicants and learned Standing Counsel for State-respondents.

3. It is stated that respondents 4 and 13 died issueless in the years 1989 and 1990 respectively; respondent 5 died in 1990, respondent 6 died in 2000, respondent 7 died in 1998, respondent 8 died in 1995, respondent 9 died in 2001, respondent 10 died in 2002, respondent 11 died in 1994 and respondent 12 died in 1992 but a composite substitution application alongwith delay condonation application has been filed on 29.10.2010.

4. Interestingly, all contesting respondents have died and in order to bring legal heirs of all the said respondents 4 to 13, a composite substitution application has been filed in October, 2010. In the context of respondent 4, application is beyond time about 21 years; in respect of respondents 5, it has been filed after twenty years; in respect of respondent 12, application is delayed by 18 years; in respect of respondent 11, delay is of 16 years; for respondent 7 delay is about 12 years; in respect of respondent 8, delay is 15 years; in respect of respondent 6, delay is of 10 years; in respect of respondent 9, delay is of 9 years; and for respondent 10 delay is of 8 years. Therefore, total tenure of delay in filing substitution application runs from 8 to 21 years. The only explanation given in affidavit supporting delay condonation application is that petitioner is an illiterate person and had no knowledge. It is not the case that deponent was not aware of time of death of respondent 4 to 13 and did not have advantage of legal opinion of counsel. Admittedly he was already represented through counsel in the present appeal.

5. This Court has to consider above explanation whether constitute "sufficient cause", which can be treated to be sufficient cause to justify condonation of delay ranging from 8 to 21 years in respect of different respondents died in different period as stated above.

6. It may also be noticed at this stage that after expiry of period of limitation in filing substitution application and thereafter application for setting aside abatement, writ petition in the context of concerned respondents had abated years ago and this period is running from 8 to 21 years.

7. It is true that discretion to condone delay is to be exercised in a meaningful manner, which may subserve ends of justice, which is the very purpose of existence of institution of justice. But, this discretion cannot be made a mockery in favour of a litigant, who has shown scant regard to provisions of limitation and/or even to show reasonable vigilant effort in persuasion of his cause.

8. In N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123 Court said :

"Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. "

9. Court clearly said, when there is reasonable ground to think that delay was occasioned by the party without any valid reason at all then the Court should lean against acceptance of explanation.

10. In Vedabai alis Vaijayanatabai Baburao Pateil vs. Shantaram Baburao Patil & Ors. (2001) 9 SCC 106, Court said that :

"A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days."

11. It is well settled that if delay is found thoroughly negligent in prosecuting the cause then it would be a legitimate exercise of discretion not to condone the delay.

12. Recently in Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai (2012) 5 SCC 157, Court said :

"....the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. "

13. In Shanti Devi and others Vs. Kaushaliya Devi, 2015 (6) AWC 5843 (SC), when a substitution application was filed with a long delay and not explained satisfactorily explained, Court said that such application should not be allowed lightly. In absence of any satisfactory explanation, delay can not be condoned. Relevant observations of Court read as under:

"9. Having gone through the papers on record, as discussed above, and keeping in mind the spirit of the provision contained in Rule 3 of Order XXII Code of Civil Procedure read with Article 120 of Schedule of Limitation Act, 1963, in our opinion, the first appellate court and the High Court have committed grave error in law in condonation of delay of more than eleven years in moving substitution application, and setting aside the abatement in the present case, particularly when the Respondent/daughter of the deceased had full knowledge of death of her father and also of the litigation pending before the first appellate court. Delay cannot be condoned on insufficient grounds and by abusing the process of law. We do not find that any sufficient reason was shown by the Respondent, before the courts below to get huge delay of eleven years condoned, for setting aside abatement, and her substitution." (emphasis added)

14. I find no explanation what to say satisfactory explanation for condonation of such a huge delay. Hence delay condonation application no. 319462 of 2010 is rejected.

15. In view of delay condonation application having been rejected, substitution application no.319464 of 2010 for substitution of legal heirs of respondents 4 to 13 is also rejected as barred by limitation.

Order on Writ Petition

16. The main contesting respondents 4 to 13 have died between 1989 to 2000 and writ petition stood abated long back. Substitution application alongwith delay condonation application was filed in 2010 along with delay condonation application which have been rejected by this order.

17. In view of above, writ petition having been abated, is liable to be dismissed. However, counsel for petitioner has also addressed Court on merits. To satisfy myself so that no injustice be caused to petitioners on account of lapse in filing substitution application after decades, I have also considered her arguments on merits.

18. This writ petition under Article 226 of Constitution of India has been filed praying for issue of a writ of certiorari quashing order dated 21.10.1983 passed by Prescribed Authority/Sub Divisional Magistrate, Tehsil Sadar, Bulandshahar confirming orders dated 25.3.1968, 02.07.1968 and 17.8.1979, declaring surplus land of petitioners, and order dated 22.9.1986 passed by Additional Commissioner, Meerut Division Meerut, dismissing petitioner's appeal.

19. The disputed land admittedly was recorded in the name of Smt. Asgari Begum, widow of Yusuf Khan, resident of Bugrasi, Pargana Syana, District Bulandshahar. Vide order dated 25.3.1968 passed by Prescribed Authority under Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as "Act, 1960") 24-4-4 area of land, of which one Asgari Begum, a tenure holder, was declared 'surplus'.

20. Vide order dated 02.7.1968 one third area of Khata No.247 plot nos.614, 599, 613, 635 M, 782, 790, 796, 858, 859, 1046 measuring 23-8-17 situated in Village Khanpur Gantu, was declared surplus.

21. On 12.10.1976, an application was filed by one Abdul Hafiz Khan Son of Chidda Khan stating that Plot 790 area 0-13-0, which was bhumidhari of his father Chidda Khan, vide order dated 02.02.1972 was excluded and entry was also made in Record, therefore, same should be excluded from the land declared 'surplus'. This application was accepted by Prescribed Authority vide order dated 20.12.1976, and area 0-13-0 of plot no.790 was excluded and earlier order was modified.

22. Thereafter, another application was filed by Mohd. Shafi Khan Son of Abdul Kabir Khan on 19.2.1977 in respect of plot 635 area 40-12-8 that the same was purchased by him from Asgari Begum on 22.12.1965 and vide order dated 27.6.1969 this sale deed was held valid by Prescribed Authority therefore area of Khasra No.635 be not taken into consideration to declare "surplus" and it should be excluded. This application was considered by Prescribed Authority. He found that no such order dated 27.6.1969 was available on record. However, Prescribed Authority vide order dated 17.8.1979 directed that from plot no.635, area 3-2-2 shown in the name of Mohd. Shafi, and area 7-11-5 shown in the name of Mohd. Abad ahmad should be deleted. The claim of Mohd. Shafi that he has purchased land and necessary entry was made, was found incorrect and rejected. Prescribed Authority also found that there was no reason to make any change in the earlier order, therefore, vide order dated 21.10.1983 application was rejected.

23. Against the said order three appeals were filed, one by Abdul Qauum; second by Sardar Ahmad and others; and, third by Modh Shafi. All these appeals have been dismissed vide by order dated 22.9.1986 passed by Appellate Authority. Court below found that on the cut off date, i.e. 03.01.1961, the land in question was in the name of Asgari Begum and she was tenure holder. Therefore, while determining "surplus land" under Act, 1960, the said land was rightly considered in the hands of Asgari Begum.

24. Learned counsel for the petitioners contended that petitioners had already been conferred Sirdari right under Section 240(g) of Act, 1951 in the year 1954 irrespective of date of mutation and therefore, orders passed by respondent authorities are bad. It is stated that in 1965 only existing rights were recognized and no new rights were created after 1961. It is also said that order dated 02.07.1968 was modified without giving any notice or opportunity to concerned affected parties, therefore it is in violation of principles of natural justice.

25. However, I find no merit in any of the above submissions. In 1961, Revenue authorities have found entire land recorded in the name of Smt. Asgari Begum widow of Yusuf Khan. In respect of alleged order dated 27.6.1969 it has been held by authorities below that is not available on record and no certified copies was available and none has been placed before this Court also. The very existence of this order was found doubtful. Therefore, I find no reason to interfere with findings of fact recorded by Courts below.

26. Even otherwise, with respect to objection of Mohd. Shafi, it has been found that it was not in respect to 'surplus land'. The only insistence therein to proceed in accordance with order dated 27.6.1969 but this order was not available on record and no certified copy was produced at any stage. Transfer of land, as claimed by Mohd. Safi was in 1965 and before that, as per the unamended provision of Act, 1960, Prescribed Authority had already passed order as per prescribed date i.e. 03.01.1961. With respect to objection of Abdul Qayyum, it has been found that he earlier filed objection which was rejected on 02.7.1968 and the same has attained finality, no further objection could have been entertained.

27. Thus, Prescribed Authority as well as Appellate Authority both have recorded concurrent findings of fact and I find that the same could neither be shown perverse or contrary to record, hence, in my view, concurrent findings recorded by Ceiling Authorities in the impugned orders cannot said to be erroneous. I, therefore, do not find any reason to interfere in exercise of power under Article 226/227 of the Constitution since the scope of judicial review in such matters is very restricted and narrow.

28. In supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.

29. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.

30. In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58, Court said:

"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere."

31. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 :

"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors".

32. In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice.

33. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47).

34. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr.,(1999) 2 SCC 143).

35. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521).

36. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82, Court has held that there is no justification for High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.

37. In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931, Court said that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse.

38. In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.

39. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472, Court observed that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below.

40. Similar view has been reiterated in State of Maharashtra Vs. Milind & ors., (2001) 1 SCC 4; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97; and Omeph Mathai & ors. Vs. M. Abdul Khader, (2002) 1 SCC 319.

41. In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675, it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.

42. In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, Court said:

"...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions."

43. In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329, Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650.

44. In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432, Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.

45. In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772, Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority.

46. In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244, Court referring its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592, observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.

47. In view of the above discussion on the merits of the matter, I am not satisfied that petitioner has made out any case requiring interference by this Court in this writ petition in exercise of jurisdiction under Article 226 of Constitution of India.

48. In the result the writ petition is dismissed as having abated as also on merits.

49. Interim order, if any, stands vacated.

Order Date :- 29.3.2019

KA