Bal Govind vs State Of U.P. And 3 Others
2023 Latest Caselaw 16276 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:113098
 
Court No. - 18
 

 
Case :- WRIT - B No. - 1812 of 2023
 

 
Petitioner :- Bal Govind
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Sheetla Sahai Srivastava
 
Counsel for Respondent :- C.S.C.,Azad Rai
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Sheetla Sahai Srivastava, Counsel for the petitioner, learned Standing Counsel for State-respondent Nos.1 to 3 and Mr. Azad Rai, Counsel for respondent No.4/ Gram Sabha.

2. With the consent of the parties the instant writ petition is being heard and disposed of finally without inviting counter affidavit.

3. The instant writ petition has been filed for quashing the orders dated 29.05.2014 passed by respondent No.3/2 as well as order dated 10.01.2023 passed by respondent No.2 in reference No.210 of 2020 under Section 48 (3) of U.P.C.H. Act.

4. Brief facts of the case are that in the proceeding under Section 48 (3) of U.P.C.H. Act, an order dated 29.05.2014 has been passed by respondent No.2 against which petitioner filed restoration application along with delay condonation application on 26.12.2017, which was dismissed by respondent No.2 vide order dated 10.01.2023. Hence this writ petition.

5. Counsel for the petitioner submitted that reference proceeding was conducted in ex-parte manner. He further submitted that a report in the reference proceeding was submitted on 29.05.2014 by the consolidation authorities and the Deputy Director of Consolidation on the same day approved the reference which demonstrate that proceeding was conducted in ex parte manner. He further submitted that no notice or opportunity of hearing was afforded to the petitioner while passing impugned order dated 29.09.2014 by which petitioner's right was affected. He next submitted that when petitioner came to know about the order dated 29.05.2014 he filed restoration application along with delay condonation application, but the same was rejected by the respondent No.2.

6. Counsel for the petitioner placed reliance upon the judgment of Apex Court reported in A.I.R. 1987 SC 1353 Collector, Land Acquisition Anantnag and another Vs. Mst Kantiji and others. He placed reliance upon paragraph No.3 of the judgment which is as follows:-

"3. 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 sub-serves 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."

7. On the other hand, learned Standing Counsel submitted that there is delay about 3 years accordingly respondent No.2 has rightly dismissed the restoration application. He further submitted that there is no proper explanation for condonation delay as such the application was rightly dismissed. He next submitted that order dated 29.05.2014 has been passed by the respondent No.3 on the basis of the report submitted by the consolidation authorities as such no interference is required.

8. I have considered the arguments advanced by the counsel for the parties and perused the record.

9. There is no doubt about the fact that in the proceeding under Section 48 (3) of U.P.C.H. Act report was submitted by the consolidation authorities on 29.05.2014 and reference was accepted on the same day. There is also no doubt about the fact that restoration along with delay condonation application supported with affidavit filed by the petitioner has been dismissed.

10. I have perused the report dated 29.05.2014 as well as the order dated 29.05.2014 by which reference was accepted as proposed. The perusal reveals that entire proceeding of reference has been conducted in ex parte manner as such interest of justice requires that reference proceedings should be decided afresh on merit.

11. Since the restoration application and delay condonation application filed by petitioner against the order dated 29.05.2014 has been rejected on the ground of limitation as such in view of ratio of law laid down by Apex Court in Collector Land Acquisition Anantnag (Supra) delay in filing the restoration is liable to be condoned and restoration application filed by petitioner is liable to be allowed. In view of the facts mentioned above, the delay in filing the restoration application dated 26.12.2017 is condoned and restoration application dated 26.12.2017 is allowed.

12. Considering the facts and circumstances of this case, the impugned order dated 10.1.2023 passed by the respondent No.2 and order dated 29.05.2014 passed by the respondent No.2 are liable to be set aside and the same are hereby set aside. The writ petition is allowed in part and matter is remitted back before the respondent No.2/ Deputy Director of Consolidation, Fatehpur to restore the reference proceeding to its original number and decide the matter afresh after affording proper opportunity to the party concerned. It is also directed that matter should be decided expeditiously preferably within a period of three months from he date of production of certified copy of this order without granting unnecessary adjournments to either of the parties.

Order Date :- 23.5.2023

PS*