Ram Gopal vs State Of U.P. And 2 Others
2023 Latest Caselaw 21483 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:162017
 
Court No. - 51
 

 
Case :- WRIT - C No. - 18619 of 2023
 

 
Petitioner :- Ram Gopal
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Vinod Kumar Agarwal,Anshul Kumar Singhal
 
Counsel for Respondent :- C.S.C
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Anshul Kumar Singhal, learned counsel for the petitioner and Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents.

2. The instant petition has been filed for the following reliefs:

"i. issue a writ, order or direction in the nature of certiorari calling for record and to quash the impugned order dated 13.3.2023 and 25.4.2022 passed by respondent no.2 in Case No.05/2021.

ii. issue a writ, order or direction in the nature of mandamus commanding and directing the respondent no.2 to decide the Case No.05 / 2021 on merits strictly in accordance with law within the stipulated period of time so fixed by this Hon'ble Court.

iii. issue any other direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice.

iv. to award cost of the petition to the petitioner."

3. Brief facts of the case are that the petitioner' father, namely, Munni Lal was the recorded tenure holder of the land forming part of Khasra Nos. 100, 101, 102, 140, 142 & 143, situated in Village- Bhoora, Pargana and Tahsil- Dadari, District- Gautam Buddh Nagar along with other co-tenure holders. Copy of the revenue record has been annexed as Annexure No.2 to the writ petition in order to demonstrate the entry of the plot in dispute. Petitioner's father has not sold the aforesaid land to any society. On 16.2.2021, Noida Authority came to the land of the petitioner and tried to demolish the petitioner's construction over the land in dispute on the ground that the land has been transferred in the name of NOIDA by the State Government. Upon enquiry by the petitioner's father it was found that the name of the State Government has been recorded in the revenue records over the plot in dispute and upon further enquiry petitioner's came to know that sale deed has been registered in the name of Pragatisheel Samuhik Sahakari Samiti Limited in respect to Khasra Nos.100, 101, 102, 140, 142 & 143. The perusal of the sale deed dated 19.8.1983 demonstrates that the same was executed by Ramman & Dhamman, sons of Bulaki and not by the petitioner's father or petitioner. A suit for declaration has been filed by the petitioner's father on 24.2.2021 declaring the sale deed dated 19.8.1983 as null & void on 24.2.2021, which has been registered as Suit No.61 of 2021. A proceeding under Section 154/166/167 of U.P.Z.A. & L.R. Act was registered as Case No.3 of 1987-88 (State vs. Pragatisheel Samuhik Sahakari Samiti Limited) and vide order dated 7.4.1993 passed by the Additional Collector (Finance & Revenue), Gautam Buddh Nagar, the aforesaid land of Khasra Nos.100, 101, 102, 140, 142 & 143 was directed to be vested in the State-Government in the aforementioned Case Nos.3 of 1987-88, petitioner's father filed an application dated 8.10.2021 to recall the order dated 7.4.1993, which has been registered as Case No.5 of 2021. Petitioner's father died on 3.12.2021, accordingly, the aforementioned Case No.5 of 2021 was dismissed for want of prosecution on 25.4.2022. As soon as petitioner came to know about the order dated 25.4.2022, he moved a recall / restoration application on 9.5.2022 to recall the order dated 25.4.2022. Respondent no.2 vide order dated 13.3.2023 rejected the petitioner's recall application as not maintainable holding that the earlier application filed by the petitioner's father against the order dated 7.4.1993 was highly barred by limitation, hence this writ petition on behalf of the petitioner challenging the orders dated 13.3.2023 and 25.4.2022 passed by respondent no.2 in Case No.5 of 2021.

4. Learned counsel for the petitioner submitted that the petitioner's father was recorded tenure holder on the part of Khasra Nos.100, 101, 102, 140, 142 & 143, situated in Village- Bhoora, Pargana & Tahsil- Dadari, District-Gautam Buddh Nagar, along with other tenure holder but vide order dated 7.4.1993 passed by Additional Collector (Finance & Revenue) Gautam Buddh Nagar, the plot in dispute has been ordered to be vested in State-Government. He further submitted that the petitioner's father has not sold the plot in dispute to any society nor petitioner has sold the land in dispute, as such, there was no question of vesting the petitioner's plot in the State Government. He next submitted that no notice or opportunity was given to the petitioner' father or petitioner and the petitioner's plot has been ordered to be vested in State Government. He also submitted that the recall application filed by the petitioner's father, against the order dated 7.4.1993, has been dismissed for non-prosecution and application filed by petitioner after death of his father has been dismissed as not maintainable. He further placed reliance upon the judgments of this Court passed in Writ Petition No.58827 of 2011 (Surajbhan Sharma vs. State of U.P. & Others) decided on 21.10.2011, Writ- C No.29898 of 2014 (Sharma Singh and Another Vs. State of U.P. and 3 Others) decided on 28.5.2014 & Writ- C No.17572 of 2016 (Jaggi Alias Jaggu Vs. State of U.P. and 3 Others), in which it has been held that the application under Section 152 of C.P.C. filed by the tenure holder should be considered on merit in accordance with law. He further submitted that dismissal of the petitioner's application for non-prosecution as well as on the ground of limitation and maintainability is illegal. He further placed reliance upon the judgment passed by the Apex Court reported in AIR 1987 SC 1353, Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others wherein it has been held that in place of rejecting the matter on technical grounds, the matter should be decided on merits.

5. On the other hand, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents submitted that no interference is required against the impugned order. He further submitted that the land has been rightly vested in the State Government as there was violation of provisions contained under U.P.Z.A. & L.R. Act. He next submitted that no interference is required in the matter and the writ petition is liable to be dismissed.

6. I have considered the argument advanced by learned counsel for the parties and perused the record.

7. There is no dispute about the fact that the petitioner's father has not sold the property in dispute to any society. There is also no dispute about the fact that recall application filed by the petitioner against the order vesting the plot in State-Government has been dismissed for non-prosecution and second application filed by the petitioner has been dismissed as not maintainable.

8. In respect to the order dated 7.4.1993 passed by the Additional Collector (Finance & Revenue), Gautam Buddh Nagar, several writ petitions were filed before this Court and the controversy has been settled in Civil Misc. Writ Petition No.58827 of 2011 (Surajbhan Sharma vs. State of U.P. & Others) decided on 21.10.2011 holding that application filed by the tenure holder to carry out the rectification after verifying status of the land, which is claimed by the tenure holder to be not part of the transaction covered by the order dated 7.4.1993 should be decided on merit in accordance with law. In another Writ- C No.29898 of 2014 (Sharma Singh and Another Vs. State of U.P. and 3 Others) decided on 28.5.2014, this Court has directed the Collector to decide the application filed by the petitioner, under Section 152 C.P.C. against the order dated 7.4.1993 vesting the plots in State- Government, within stipulated period.

9. In the instant matter, the first recall application filed by the petitioner's father against the order dated 7.4.1993 was dismissed for non-prosecution and second application filed by petitioner after death of his father was dismissed as not maintainable recording finding that the earlier application was filed with inordinate delay.

10. Since the controversy has already been settled in respect to the application filed against the order dated 7.4.1993, as such, the application dated 8.10.2021 and 9.5.2022 filed by the petitioner's father / petitioner respectively were liable to be allowed and the application dated 8.10.2021 was to be considered on merit in view of the ratio of law laid down in Surajbhan Sharma (supra) as well as Sharma Singh and Another (supra).

11. So far as the dismissal of the recall application on the ground of limitation is concerned, the same is also not in the interest of justice in view of the ratio of law laid down by this Court reported in AIR 1987 SC 1353, Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others wherein it has been held that in place of rejecting the matter on technical grounds, the matter should be decided on merits.

Paragraph No.3 of the judgment rendered in Collector Land Acquisition Anantnag (supra) shall be relevant for perusal, which is as under:

"The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts 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. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

"Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step motherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."

12. Considering the entire facts and circumstances of the case, the impugned orders dated 13.3.2023 & 25.4.2022 passed by respondent no.2 i.e. Collector, District- Gautam Buddh Nagar are liable to be set aside and the same are hereby set aside.

13. The writ petition stands allowed in part and the matter is remitted back before respondent no.2 to register the Case No.5 of 2021 on its original number and decide the same on merit considering the ratio of law laid down in Surajbhan Sharma (supra) & Sharma Singh (supra), in accordance with law, expeditiously preferably within a period of three months from the date of production of certified copy of this order before him. It is further directed that respondent no.2 shall issue notice to all the interested parties to the dispute before deciding the Case No.5 of 2021 on merit.

Order Date :- 10.8.2023/Rameez