Rajesh Chaudhary vs State Of U.P. And 3 Others
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Allahabad High Court

Rajesh Chaudhary vs State Of U.P. And 3 Others on 4 January, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:1596
 
Court No. - 49
 

 
Case :- WRIT - C No. - 44668 of 2023
 

 
Petitioner :- Rajesh Chaudhary
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Ashok Kumar Dwivedi
 
Counsel for Respondent :- C.S.C.,Amit Kumar Singh,Pankaj Kumar Gupta
 

 
Hon'ble Chandra Kumar Rai,J.
 

1.Heard Mr. Ashok Kumar Dwivedi, learned counsel for the petitioner, Mr. Pankaj Kumar Gupta, learned counsel for respondent No.4/Gaon Sabha, Mr. Shridhar Tripathi, learned Standing Counsel for the State-respondent and Mr. Amit Kumar Singh, Advocate, who has filed caveat on behalf of Gangaram Gupta, although Gangaram Gupta has not been impleaded in the writ petition.

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

"(I) issue a writ, order or direction in the nature of certiorari quashing the impugned order dted 18.05.2018 (Annexure No.2) passed by respondent No.3 in Case No. T 2016176577025497(Gaon Sabha Vs. Rajesh Chaudhary) under Section 67 (1) of U.P. Revenue Code, 2006 and order dated 10.11.2023 (AnnexureNo.1) passed by respondent No.2 ion Ce No. D 2023176500006668 (Rakesj Cjaidjaryu Vs./ State of U.P.) under Section 207 of U.P. Revenue Code, 2006 read with Section 67 (5) of U.P. Revenue Code, 2006.

(II) Issue a writ, order or direction in the nature of mandamus directing the respondents not to interfere in the peaceful possession of petitioner over the house in question."

3. With the consent of learned counsel for the parties the instant petition is being heard and disposed of finally without inviting counter affidavit.

4. Brief facts of the case are that proceeding under Section 67 (1) of U.P Revenue Code 2006 was initiated against the petitioner in respect to plot No.333 M area 0.047 hectare and order for ejectment and damages has been passed on 18.05.2018 by Tehsildar. Petitioner filed an appeal under Section 67 (5) of U.P. Revenue Code, 2006 along with the prayer for condonation of delay of about 3 years which has been dismissed on the ground of limitation hence this writ petition on behalf of petitioner.

5. Learned counsel for the petitioner submitted that order for ejectment and damages has been passed against the petitioner in the proceeding under Section 67 (1) of U.P. Revenue Code, 2006 by the Tehsildar in ex-parte as well as arbitrary manner. He submitted that petitioner filed an appeal under Section 67 (5) of U.P. Revenue Code, 2006 along with prayer for condoation of delay before the Collector which has been dismissed on the ground of limitation. He further submitted that case of the petitioner has not been examined on merit by the Tehsildar or by collector in appeal in accordance with law. He further submitted that petitioner is in possession over the plot in question since long which was reserved for general abadi during consolidation operation. He further submitted that proceedings under Section 67 are not maintainable, as such the impugned order is liable to be set aside. He further submitted that similar controversy against the order passed by Tehsildar has been entertained by this Court in Writ C No. 43359 of 2023 in which interim protection for maintaining status quo has been granted.

6. On the other hand, Mr. Pankaj Kumar Gupta, learned counsel for Gaon Sabha, Mr. Shridhar Tripathi, learned Standing Counsel for the State-respondents and Mr. Amit Kumar Singh, learned counsel for the caveator submitted that land in dispute is not reserved for general abadi. They further submitted that proceeding has been rightly initiated and the order for ejetement has been rightly passed against the petitioner. They further submitted that petitioner has not initiated any proceeding for restoration before the Tehsildar if the order is ex-parte, as such in view of the provision contained under Section 209(h) of U.P. Revenue Code, 2006 the appeal is not maintainable against the ex parte order. They further submitted that no interference is required in the matter against the impugned orders. They further submitted that appeal was highly time barred, as such the appellate court has been rightly dismissed the petitioner's appeal on the ground of limitation. They next submitted that appeal was barred by about 3 years and there was no proper explanation for condonation of delay in appeal.

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

8. There is no dispute about the fact that order for ejectment and damages has been passed by the Tehsildar against the petitioner on 18.05.2018. There is also no dispute about the fact that appeal filed by the petitioner under Section 67 (5) of U.P. Revenue Code, 2006 along with the prayer for condonation of delay has been dismissed on the ground of limitation.

9. In order to appreciate the controversy involved in the matter perusal of Section 67 (5) and Section 214 of the U.P.Revenue Code, 2006 will be relevant, which is as under:

"Section 67 (5) of U.P. Revenue Code, 2006

Any person aggrieved by an order of the Assistant Collector under sub-section (3) or sub-section (4), may within thirty days from the date of such order, prefer an appeal to the Collector."

"Section 214 of U.P. Revenue Code, 2006:

"214 Applicability of Code of Civil Procedure, 1908 and Limitation Act, 1963. - Unless otherwise expressly provided by or under this Code, the provisions of the Code of Civil Procedure, 1908 and the Limitation Act, 1963 shall apply to every suit, application or proceedings under this Code."

10. The perusal of the order passed by the Tehsildar will also be relevant which is also as under:

"?????????- ????????, ???????

?????? ?????, ????? ???????? ???, ?????? ????????

????????????? ??? ??????? T2016176577025497

??? ???????- 5497/2016

??????? ?????? ???? ??????????

????? ?????? ?????? ?????? - 2006, ???????? ?????- 67

" ?????? ????"

???? ?????- 18/05/2018

??? ???? ??? ?? ??????? ?????? ?????? 21.12.2016 ?? ?????? ?? ???? ?? ?? ??????? ????? ????? ????? ??????? ????? ???????? ????? ????? ????? ????? ???? ?? ?????? ?????? 333 ??/ 0.047 ??? ?? ????? ???? ???? ??? ??????? ??? ??????? ??? ???? 1 ???? 4 ??? ?? ??????????? ??? 12925 ????? ?? ???????? ????? 5/- ??? ??? 12930 ??? ???????? ?? ?????? ???? ???? ??? ????? 67(8) ???? ??? ???????? ?? ??? ???????? ????? ????? ???"

11. The perusal of the order passed by the Tehsildar reveals that the order passed by the Tehsildar for ejectment and imposition of damages against the petitioner is cryptic order. The appeal filed by the petitioner against the order of Tehsildar has been also dismissed on the ground of limitation. The Hon'ble Apex Court in case reported in AIR 1987 SC 1353, Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others has held that application/ appeal/ revision are not be dismissed on the technical ground.

12. 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."

13. This Court in the case reported in 2023 (1) ADJ 154 Rishipal Singh Vs. State of U.P. and others has also considered the scope of the proceeding under Section 67 (1), 67 A and 67 (5) of U.P. Revenue Code, 2006 which will be also relevant in order to appreciate the controversy involved in the matter.

14. Paragraph No.74 of the judgment rendered in Rishipal Singh (Supra) will be relevant for perusal which is as under:

"74. Thus, in my view, following guidelines be adopted as procedure to be applied to proceedings under Sections 67,67A and 26 of the U.P. Revenue Code. It is all aimed at ensuring transparency in the procedure, judiciousness in approach by the authorities and to thwart every complaint made with ulterior and oblique motive to dislodge a long settled possession and causing of unnecessary harassment to an innocent villager:

(i) In case of complaint made on RC From 19, the official making it shall ensure that proper survey is done in the light of observations made in this judgment; the land, occupation of which has stood identified to be unauthorized is in exact measurement and so also shown in the survey map prepared on scale, as per the Land Revenue Survey Regulations, 1978; the exact assessment of damages on the basis of circle rate with details of calculation made on that basis.

(ii) In a case of suo motu action, before issuing RC Form 20, the authority will ensure that proper report upon RC Form 19 is submitted as per para (i) above on parameters of subrule 1 Rule 67.

(iii) RC Form 20 must be accompanied by a copy of report and spot survey submitted alongwith RC Form 19 to the person against whom proceedings have been instituted, or even otherwise submitted in case of suo motu action vide para (ii) above.

(iv) Upon reply being filed to the notice, if authority finds that spot survey/explanation report is not satisfactory, it may order for a fresh spot report to be prepared in presence of the party aggrieved.

(v) In the event, objection includes a plea of statutory protection/ benefit under Section 67-A, the authority should invite the objection from the Gaon Sabha, and will decide the same alongwith the matter under Section 67, without requiring aggrieved party to move separate application under Section 67-A.

(vi) If the report is admitted on record, may be in case no objection is filed, the authority must ensure presence of the person preparing the report before it, to prove the report by his statement, with a right to aggrieved party to cross question him.

(vii) The authority must endeavour to decide the case within time framed provided under the relevant Act and the Rules and should desist from granting adjournment to the parties in a routine manner.

(viii) In case of appeal under Section 67(5) of the U.P. Revenue Code, 2006, preferred/ filed within the time prescribed alongwith interim relief application, the interim relief application as far as possible should be decided within two weeks' time with prior notice to other side and where plea of settlement under Section 67-A has been taken before Assistant Collector-1st Class, and damages to the tune of 25 % at-least of the total damages are paid and an affidavit of undertaking is filed for not raising any further construction upon the land in question, the authorities including civil administration should avoid taking any coercive measure pursuant to the order appealed against until the disposal of interim relief application. The Appellate authority may also consider granting interim relief on the very first day of filing of appeal with stay application if above conditions are fulfilled by the appellant.

(ix) The appellate authority should as far as possible decide the appeal within a period of two months of its presentation."

15. Considering the ratio of law laid down by the Apex Court in case of Collector, Land Acquisition Anantnag (Supra) as well as provision contained under Section 214 of U.P. Revenue Code 2006 by which provision of Section 5 of Indian Limitation Act has been made applicable in the revenue proceedings, the impugned appellate order dismissing the petitioner's appeal on the ground of limitation cannot be sustained in the eye of law.

16. Considering the facts and circumstances of the case, the impugned appellate order dated 10.11.2023 passed by Collector, Sant Kabir Nagar-respondent No.2 is liable to be set aside and the same is hereby set aside. The writ petition is allowed in part and matter is remanded back before the respondent No.2 to restore the petitioner's appeal to its original number and decide the same afresh after passing necessary order on delay condonation matter taking into consideration the ratio of law laid down by Hon'ble Apex Court in Collector Land (Supra) within a period of three moths from the date of production of certified copy of this order after giving opportunity of hearing to the parties concerned and without granting unnecessary adjournments to either of the parties.

Order Date :- 4.1.2024/PS*