Tufani vs Board Of Revenue And Others
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Allahabad High Court

Tufani vs Board Of Revenue And Others on 3 January, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:1173
 
Court No. - 50
 

 
Case :- WRIT - B No. - 49700 of 2009
 

 
Petitioner :- Tufani
 
Respondent :- Board Of Revenue And Others
 
Counsel for Petitioner :- Pankaj Kumar Mishra
 
Counsel for Respondent :- C.S.C.,Sanjay Kumar Pandey
 

 
Hon'ble Chandra Kumar Rai,J.
 

1. Heard Sri Sanjay Kumar Tiwari, holding the brief of Sri Pankaj Kumar Mishra, learned counsel for the petitioner, Sri Sanjay Kumar Pandey, learned counsel for respondent no.2 and the learned standing counsel for the state-respondents.

2. Brief facts of the case are that a suit under Section 229-B of The U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the "U.P. Z.A. & L.R. Act"), was filed by father of petitioner in respect to plot no.192 (New Nos. 24M, area .06 decimal, 25M, area .02 decimal, 30M, area .03 decimal), before the Sub Divisional Officer which was registered as Case No.244/232/353/90. In the aforementioned suit, issues were framed before the trial court and parties have adduced evidence in support of their cases. The trial court/S.D.O. vide judgment and decree dated 23.3.1998 decreed the plaintiff's suit declaring the plaintiff as Bhumidhar of the plot in question. Against the judgment and decree of the trial court dated 23.3.1998, an appeal was filed by the father of the contesting respondent No-2 before the Commissioner which was registered as Appeal No.49/35/G-1998. The aforementioned appeal was heard finally by the Additional Commissioner, Gorakhpur Division, Gorakhpur, which was allowed vide judgment dated 17.10.2002, setting aside the order of the trial court dated 23.3.1998. Against the judgment of the Additional Commissioner dated 17.10.2002, second appeal was filed on behalf of the petitioner before the Board of Revenue which was registered as Second Appeal No.8/2002-03. The Board of Revenue vide order dated 13.11.2007, dismissed the second appeal for non-prosecution. Against the dismissal of the second appeal for non-prosecution, a restoration application along with prayer for condonation of delay was filed on 23.3.2009 on behalf of the petitioner which has been rejected as time barred under the impugned order dated 15.7.2009. Hence, this writ petition for the following relief:-

"Issue a writ, order or direction in the nature of certiorari to quash the order dated 15.7.2009 passed by respondent no.1 and direct to respondent no.1 to decide/pass order on restoration application dated 23.3.2009 after taking lenient view, condoning the delay and restore the case on its original number and status."

3.This Court vide order dated 16.9.2009 entertained the matter & directed the parties to maintain the status quo with regard to possession over the land in dispute.

4. In pursuance of the order dated 16.9.2009 parties have exchanged their affidavit.

5. Counsel for the petitioner submitted that the suit filed by the petitioner's father under Section 229-B of the U.P. Z.A. & L.R. Act was decreed by the trial court after framing issues and giving parties to lead evidence in accordance with law but the second appeal filed by the petitioner against the judgment of the 1st appellate court, has been dismissed for non-prosecution and the restoration application has also been rejected as time barred in arbitrary manner. He submitted that the order, rejecting the restoration application be set aside and necessary direction be issued to the Board of Revenue/respondent no.1 to decide the petitioner's restoration application, taking liberal view in the matter.

6. On the other hand, Sri Sanjay Kumar Pandey, learned counsel for respondent no.2 submitted that the second appeal filed by the petitioner was dismissed for non-prosecution in the year 2007 and the restoration application was filed in the year 2009, as such, Board of Revenue has rightly rejected the restoration application filed by the petitioner. He submitted that the second appeal was filed by a different counsel and the restoration application was also filed by a different counsel, as such, the restoration application filed by the petitioner, cannot be entertained. He submitted that the 1st appellate court has allowed the appeal filed by the father of respondent no.2, setting aside the judgment and decree of the trial court, as such, the petitioner was delaying the proceeding by one way or the other. He further submitted that Board of Revenue has recorded reason while rejecting the restoration application filed by the petitioner, as such no interference is required in the matter and the writ petition is liable to be dismissed.

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

8. There is no dispute about the fact that the suit filed by the petitioner's father, under Section 229-B of the U.P. Z.A. & L.R. Act was decreed by the trial court but the decree of the trial court was set aside in first appeal. There is also no dispute about the fact that the second appeal filed by the petitioner was dismissed for non-prosecution and a time-barred restoration application has been rejected as time barred under the impugned order by the Board of Revenue.

9. It is material to mention that matter arises out of the proceeding under Section 229-B of the U.P. Z.A. & L.R. Act and the second appeal filed by the petitioner has been dismissed for non-prosecution, as such, the dismissal of the restoration application filed by the petitioner on the ground of limitation is not in the interest of justice.

10. The Hon'ble 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 matter on technical grounds, the matter should be decided on merits. 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."

11. The Hon'ble Apex Court in another case reported in 2024 (165) ALR 241, Pathapati Subba Reddy (died) by L.R.s and Others vs. The Special Deputy Collector (LA), has considered the issue of delay condonation and refused to interfere with the order passed by the High Court, refusing to condone the delay in filing the appeal. Paragraph nos. 31 & 32 of the judgement runs as under:-

31. Learned counsel for the petitioners next submitted on the basis of additional documents that in connection with the land acquisition in some other Special Leave Petitions, delay was condoned taking a lenient view and the compensation was enhanced with the rider that the claimants shall not be entitled for statutory benefits for the period of delay in approaching this Court or the High Court. The said orders do not clearly spell out the facts and the reasons explaining the delay in filing the appeal(s) but the fact remains that the delay was condoned by taking too liberal an approach and putting conditions which have not been approved of by this Court itself. In the absence of the facts for getting the delay condoned in the referred cases, vis--vis, the facts of this case, it cannot be said that the facts or the reasons of getting the delay condoned are identical or similar. Therefore, we are unable to exercise our discretionary power of condoning the delay in filing the appeal on parity with the above order(s).

32. Moreover, the High Court, in the facts of this case, has not found it fit to exercise its discretionary jurisdiction of condoning the delay. There is no occasion for us to interfere with the discretion so exercised by the High Court for the reasons recorded. First, the claimants were negligent in pursuing the reference and then in filing the proposed appeal. Secondly, most of the claimants have accepted the decision of the reference court. Thirdly, in the event the petitioners have not been substituted and made party to the reference before its decision, they could have applied for procedural review which they never did. Thus, there is apparently no due diligence on their part in pursuing the matter. Accordingly, in our opinion, High Court is justified in refusing to condone the delay in filing the appeal.

12. From the perusal of the ratio of law laid down by Hon'ble Apex Court in Collector Land Acquisition Anantnag (supra) as well as Pathapati Subba Reddy (supra), it is very much established that delay condonation matter should be considered and disposed of, considering the entire facts and circumstances of the case relating to condonation of delay.

13. In the instant matter, the suit for declaration filed by the petitioner's father, was decided in proper manner by the trial court, declaring the petitioner's father as Bhumidhar of the plot in dispute. In the 1st appeal, the decree of the trial court was set aside, accordingly, second appeal was filed by the petitioner before the Board of Revenue which has been dismissed for non-prosecution and the restoration/recall application along with prayer for condonation of delay filed on behalf of petitioner has been rejected under the impugned order in arbitrary manner, as such, the interest of justice requires that the second appeal is to be decided on merit rather on technical grounds.

14. Considering the entire facts and circumstances of the case, the impugned order dated 15.7.2009, passed by respondent no.1/Board of Revenue, U.P. at Allahabad is liable to be set aside and the same is hereby set aside.

15. The writ petition stands allowed and respondent no.1/Board of Revenue, U.P. at Allahabad is directed to decide the petitioner's restoration application dated 23.3.2009, considering the delay condonation matter first, in the light of the ratio of law laid down by Hon'ble the Apex Court in Collector Land Acquisition Anantnag (supra), as expeditiously as possible, preferably within a period of 3 months, from the date of production of a certified copy of this order before the authority concerned, after affording proper opportunity of hearing to the parties concerned, in accordance with law.

16. No order as to costs.

Order Date :- 3.1.2025

C.Prakash