Shri Prakash Mishra vs State Of U.P. And 4 Others
2023 Latest Caselaw 23352 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:172095
 
Court No. - 51
 
Case :- WRIT - C No. - 27571 of 2023
 
Petitioner :- Shri Prakash Mishra
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Shyamdhar Pandey
 
Counsel for Respondent :- C.S.C.,Pradeep Singh
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Shyamdhar Pandey, Counsel for the petitioner, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Pradeep Singh for respondent no.5, Land Management Committee.

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

"(i) Issue a writ, order or direction in the nature of certiorari for quashing the order dated 28.7.2023 passed by Collector, Bhadohi in Appeal No. 354 of 2023, Computerized appeal No. D202316670000354 (Shri Prakash Mishra Vs. State of U.P.) and the order passed by Tehsildar dated 23.4.2022 and as well as demolition notice dated 16.12.2022.

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents may not demolish the house of the petitioner which has been constructed over plot No. 753."

3. Counsel for the petitioner submitted that order for ejectment and damages has been passed by Tehsildar on 23.4.2022 in the arbitrary manner under Section 67 of the U.P. Revenue Code, 2006. He further submitted that against the order of ejectment and damages passed by Tehsildar on 23.4.2022, a restoration application filed by petitioner was dismissed on 7.7.2022 accordingly an appeal under Section 67 (5) of U.P. Revenue Code, 2006 along with the prayer for condonation of delay was filed on 16.1.2023 before respondent no.2. He further submitted that appeal filed by petitioner along with the prayer for condonation of delay has been dismissed on the ground of limitation. He submitted that neither Tehsildar nor District Magistrate has taken into consideration the points on merit and passed the impugned order in the arbitrary manner. He further placed reliance upon the judgment of this Court reported in 2023 (1) ADJ 154 Rishi Pal Singh Vs. State of U.P. and Others as well as the judgment passed by Apex Court in AIR 1987 SC 1353, Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others in order to demonstrate that dismissal of appeal on the technical ground is not in the interest of justice. He submitted that impugned order be set aside and matter be remitted back for fresh consideration of the dispute in accordance with law.

4. On the other hand, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents submitted that in respect to the nature of the entry of the plot in dispute, petitioner is not entitled to any relief in the matter. He submitted that land in dispute is recorded as pond, as such, petitioner will not accrue any right in respect to the plot in dispute. They submitted that appeal was delayed, as such, the District Magistrate has rightly dismissed the appeal on the ground of limitation.

5. I have considered the arguments advanced by learned Counsel for the parties and perused the records.

6. There is no dispute about the fact that order for ejectment and damages passed against petitioner has been maintained by the Collector in appeal.

7. Counsel for the petitioner advanced the argument that petitioner is not in possession of plot No. 751 which is recorded as pond rather he is in possession of Plot No.753, as such, without proper demarcation and survey of the plot in dispute, the order for ejectment and damages cannot be passed by the authorities under Section 67 of the U.P. Revenue Code, 2006.

8. In view of the ratio of law laid down by this Court in Rishi Pal Singh (Supra), the order passed even by the Tehsildar cannot be maintained unless the proper demarcation is made by the authorities.

9. So far as the dismissal of the appeal on the ground of limitation is concern, the ratio of law laid down by Apex Court in Collector Land Acquisition Anantnag (supra) will be relevant for perusal, the relevant paragraph of the judgment are as follow:

"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:-

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."

10. Considering the facts and circumstances of the case as well as ratio of law laid down in Rishipal Singh (Supra) and Collector Land Acquisition Anantnag (Supra), the impugned order dated 28.7.2023 passed by respondent no.2, Collector/ District Magistrate, S.R.N. Bhadohi in appeal No. 354 of 2023, Computerized appeal No. D202316670000354 (Shri Prakash Mishra Vs. State of U.P.) is liable to be set aside and the same is hereby set aside. Writ petition stands allowed in part and matter is remitted back before respondent no.2 to register the aforementioned appeal on its original number and pass necessary order on delay condonation matter first considering the ratio of law laid down by Apex Court in Collector Land Acquisition Anantnag (supra). After passing necessary order on delay condonation matter, the appeal itself shall be decided on merit considering the ratio of law laid down by this Court in Rishi Pal Singh (Supra) that is for making proper survey and demarcation of the plot in dispute. The entire proceeding of appeal shall be concluded within period of four months from the date of production of certified copy of this order. Till the disposal of the petitioner's appeal by respondent no.2, no coercive action shall be take against the petitioner in pursuance of the order passed by Tehsildar on 23.4.2022.

Order Date :- 25.8.2023/ Vandana Y.