Mahendra Singh And 5 Others vs State Of U.P. And 2 Others
2023 Latest Caselaw 156 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 7
 

 
Case :- WRIT - C No. - 24411 of 2022
 

 
Petitioner :- Mahendra Singh And 5 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Vinod Kumar Shukla
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.

Amendment application filed by the petitioners is taken on record.

In Re: Civil Misc. Amendment Application No. Nil of 2022

Office is directed to allot number to the amendment application.

Heard learned counsel for the parties.

Amendment application is allowed.

Learned counsel for the petitioner is permitted to make necessary amendment in the array of the parties during course of the day.

Order on Writ Petition

Heard Sri Vinod Kumar Shukla, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Sri Arun Kumar Pandey, learned counsel for the respondent- Gaon Sabha.

Brief facts of the case are that the name of the ancestor of the petitioners was recorded in the revenue record prior to the abolition of the Zamindari for the purpose of growing Singhara and name of the ancestor of the petitioners was also recorded as Asami in Sherni-3 of the pond land. The name of Ram Swaroop and Ghasita sons of Lala mutated in the revenue record after the death of Lala. During consolidation operation plot in dispute has been numbered as Khata No.267 Gata No.185 (old no.76/2 and 76/3) area 0.324 hectare, Gata No.194 (old no.81) area 0.185 hectare and Gata No.186 (old no.76/1) area 0.068 hectare was recorded in the name of Ram Swaroop son of Lala and Babu Ram, Om Prakash, Ram Kumar, Ram Pal, Bal Mukund sons of Ghasita as Asami / Sirdar. Ram Swaroop has died on 10.7.2010, as such, petitioners are the legal heirs of Ram Swaroop. Babu Ram and Om Prakash have died on 12.11.2011 and 11.5.2004. The proceeding under Section 202 read with Rule 176 (A) (2) of U.P.Z.A. & L.R. Act has been initiated by respondent no.2 on the basis of the report of Tahsildar against Ram Swaroop, father of the petitioner nos.1 to 3 and petitioner nos.4 to 6, the same was registered as Suit No.104 of 2013 (State Vs. Ram Swaroop and Others) and respondent no.2 without any notice and opportunity of hearing to the petitioners-defendants passed an ex-parte order dated 24.4.2013 expunging the name of tenure holder from the revenue records and the land was ordered to be recorded in the name of Gram Sabha. Petitioners preferred a revision under Section 333 of U.P.Z.A. & L.R. Act against the order dated 24.4.2013 along with application under Section 5 of Limitation Act. Respondent no.1 vide order dated 25.2.2021 dismissed the petitioners' revision on the ground of limitation, hence this writ petition.

Learned counsel for the petitioners submitted that the name of petitioners' ancestor were recorded in the revenue record but without any notice and opportunity to the petitioners or their ancestor, respondent no.2 vide order dated 24.4.2013 has expunged the petitioners' entry and ordered to record the plot in dispute as Gaon Sabha. He further submitted that when the petitioners came to know about the order passed by the trial Court, revision along with application under Section 5 of Limitation Act has been filed before the revisional Court and the revisional Court has dismissed the petitioners' revision on the ground of limitation. He placed reliance upon the judgment of the Hon'ble Supreme Court reported in AIR 1987 SC 1353, Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others in order to demonstrate that the dismissal of the application, suit, appeal & revision on the technical grounds will be against the principle settled by the courts from time to time. He further submitted that the impugned order be set aside and matter be remanded back to the courts below for decision of the suit under Section 202 of U.P.Z.A. & L.R. Act on merit after affording opportunity of hearing to the petitioners.

On the other hand, learned Standing Counsel submitted that although notice / opportunity has not been afforded to the petitioners but since the petitioners are claiming on the basis of Asami Patta, as such, the order has been passed in the ends of justice and no interference is required against the impugned order. He further submitted that the revision has been filed with inordinate delay, as such, the revision has also been rightly dismissed.

I have considered the submission advanced by learned counsel for the parties.

There is no dispute about the fact that the suit under Section 202 of U.P.Z.A. & L.R. Act has been decreed without any notice and opportunity of hearing to the petitioners or their ancestor who was recorded in the plot in dispute and was also in possession at the relevant point of time.

There is also no dispute about the fact that the revision filed by the petitioners has been dismissed on the technical grounds.

Since revision filed by the petitioners has been dismissed on the ground of limitation, as such, in view of the law laid down by Hon'ble Apex Court in Collector, Land Acquisition Anantnag (supra), the revision requires decision on merit in place of dismissal on technical grounds. Paragraph No.3 of the judgment rendered in Collector, Land Acquisition Anantnag (supra) is as follows:

"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."

So far as the judgment of trial Court is concerned, no notice and opportunity has been afforded to the petitioners before expunging their revenue entry, as such, judgment passed by the trial Court cannot be sustained in the eye of law, as such, interest of justice requires that matter should be sent back to trial Court for fresh decision of suit on merit.

Considering the entire facts and circumstances as well as the ratio laid down by the Apex Court in Collector, Land Acquisition Anantnag (supra), the impugned order dated 25.2.2021 passed by Commissioner, Moradabad Division Moradabad and order dated 24.4.2013 passed by Up Ziladhikari, Najibabad are liable to be set aside and the same are hereby set aside.

The writ petition stands allowed and the matter is remitted back before respondent no.2 to register the suit on its original number and decide the same on merit after opportunity of hearing to the petitioners in accordance with law. The suit will be decided expeditiously preferably within period of six months from the date of production of certified copy of this order.

Order Date :- 3.1.2023

Rameez