Hasmuddin And 12 Others vs State Of Up And 3 Others
2023 Latest Caselaw 1849 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 7
 

 
Case :- WRIT - C No. - 32714 of 2022
 

 
Petitioner :- Hasmuddin And 12 Others
 
Respondent :- State Of Up And 3 Others
 
Counsel for Petitioner :- Arvind Srivastava,Ajay Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Sunil Kumar Singh
 

 
Hon'ble Chandra Kumar Rai,J.

Heard Mr. Arvind Srivastava, learned counsel for the petitioners, learned Standing Counsel for the State-respondents and Mr. Sunil Kumar Singh, learned counsel for the respondent-Gaon Sabha.

With the consent of the learned counsel for the parties, the writ petition is being disposed of finally without inviting counter affidavit.

Brief facts of this case are that predecessors of the petitioners were recorded as bhumidhar over the land in dispute (Khasra No.757 area 0.0760 hectare), situated in Village Masuri, Pargana- Dasna, District- Ghaziabad and entry remained intact during consolidation operation. A complaint was filed by one Salamatulla, the then Gram Pradhan in respect to the plot in dispute and by way of ex-parte order dated 18.6.2014 passed by Additional District Magistrate, the plot in dispute was ordered to be recorded as Usar. Petitioners filed an application dated 6.11.2014 to recall the order dated 18.6.2014 along with an application under Section 5 of Indian Limitation Act. Up-Ziladhikari heard the petitioners' restoration/ recall application dated 6.11.2014 as well as application under Section 5 of Indian Limitation Act and vide order dated 31.8.2019 rejected the petitioners' application on the ground of limitation. Petitioners challenged the order dated 31.8.2019 through revision before Commissioner which has been rejected by Additional Commissioner vide order dated 25.8.2022, hence this writ petition.

Learned counsel for the petitioners submitted that proceedings under Section 33/39 of U.P. Land Revenue Act has been decided without giving opportunity of hearing to the petitioners who were recorded in the revenue records at the relevant point of time when the proceedings were initiated. He further submitted that petitioners were recorded even during consolidation operation, as such, the summary proceedings under Section 33/39 of U.P. Land Revenue Act for expunging the name of the petitioners is abuse of process of law. He next submitted that the order passed for expunging entry of the petitioners has been challenged by way of a recall application along with application under Section 5 of Limitation Act explaining the delay of few months against the order impugned. He further submitted that recall application as well as delay condonation application has been rejected on the ground that delay has not been explained properly in the affidavit and applications. He also submitted that the revision has also been dismissed without considering the case of the petitioners.

On the other hand, learned counsel for the respondents submitted that the writ petition arising out of summary proceeding is not maintainable. He further submitted that there was delay in filing the recall application, as such, no interference is required and the recall application was rightly rejected.

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

There is no dispute about the fact that petitioners were recorded in the revenue records at the time when the proceedings under Section 33/39 of U.P. Land Revenue Act was initiated. According to the petitioners, the opportunity of hearing has not been afforded to the petitioners, accordingly, recall application along with Section 5 of Limitation Act explaining delay of few months has been filed but the same has been rejected on technical grounds.

Since the petitioners has not been given proper opportunity of hearing while expunging his long standing entry, as such, interest of justice requires that petitioners should be given proper opportunity of hearing before passing any order expunging their entry.

So far as dismissal of the recall application on the technical grounds is concerned, the Apex Court in the case reported in AIR 1987 SC 1353, Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others has held that in place of rejecting the application/ appeal / revision on technical grounds, the matter should be decided on merits. Paragraph No.3 of the judgment is relevant, which 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."

Considering the ratio of law laid down in Collector, Land Acquisition Anantnag (supra) as well as in the facts and circumstances of the case, the impugned order dated 31.8.2019 passed by S.D.M./ Assistant Collector 1st Class, Ghaziabad and order dated 25.8.2022 passed by Additional Commissioner (Administration IInd) 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.3 i.e. Sub-Divisional Magistrate Ist Class, Ghaziabad to pass necessary order on the petitioners' recall application / delay condonation application dated 6.9.2014 in light of judgment of the Apex Court in Collector, Land Acquisition Anantnag (supra) and decide the proceedings under Section 33/39 of U.P. Land Revenue Act on merit after giving proper opportunity of hearing to the petitioners and decide the same expeditiously preferably within period of three months from the date of production of certified copy of this order.

Order Date :- 18.1.2023

Rameez