Rajasthan High Court - Jodhpur

Chena vs State Of Raj on 23 August, 2023

Bench: Nupur Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 9106/2016

Chena S/o Shri Rupa Bheel, R/o Titardi, Tehsil Girwa District Udaipur.

----Petitioner Versus State Of Rajasthan Through Tehsildar, Girwa, District Udaipur.

                                                                ----Respondent


For Petitioner(s)         :    Mr. Deelip Kawadia
                               Ms. Rakhi Chowdhary
For Respondent(s)         :    Mr. R.D Bhadu, GC



             HON'BLE DR. JUSTICE NUPUR BHATI

                                    Order

23/08/2023

1. The present writ petition is filed under Articles 226 and 227 of

the Constitution of India claiming following reliefs:

"It is, therefore, most humbly and respectfully prayed that this writ petition of the petitioner may kindly be allowed and

A. By an appropriate writ order or direction, the order dated 11.05.2012 passed by learned Divisional Commissioner (Annex.6), order dated 25.03.2015 (Annex.7) and order dated 18.04.2016 (Annex.8) passed by the learned Board of Revenue may kindly be quashed and set aside.

B. Further, by an appropriate writ order or direction, the order dated 27.10.2006 (Annex.3) passed by the learned SDM, Tehsil Girwa District Udaipur may kindly be restored and the application under Section 5 of the Limitation Act filed by the respondent State may kindly be dismissed with costs.

(2 of 14) [CW-9106/2016]

C. Any other appropriate writ order or direction, which the Hon'ble Court deems fit, may kindly be passed in favour of the petitioner."

2. The factual matrix of the case is that the petitioner had been in

possession of the land situated in Arazi No.3054 and 3231/3052 of

revenue village Titardi, Tehsil Girwa District Udaipur. The said land

was earlier recorded in the name of the petitioner and the Sabik

Arazi number of the said land was 1127/7. The aforesaid land was

wrongly marked as Belanam Government land during settlement

and thereafter, the petitioner made an application dated

18.07.2006 for correction in the revenue entries before the Sub

Divisional Magistrate (hereinafter referred to as 'SDM'), Tehsil

Girwa District Udaipur. Then, the SDM vide endorsement dated

20.07.2006 referred the matter to Patwari concerned.

3. Thereafter, the report dated 08.08.2006 was forwarded by the

Up-Tehsildar, in which the Up-Tehsildar stated that the petitioner is

in possession of the land in question.

4. After obtaining the report dated 08.08.2006 forwarded by the

Up-Tehsildar and going through the material available on record

and also after scrutinizing the Milan Khetraphal, and settlement

record, the SDM vide order dated 27.10.2006 allowed the

application dated 18.07.2006 of the petitioner. In the order dated

27.10.2006, the SDM stated that the settlement department has

erroneously recorded the land of the petitioner as Belanam

Government Land and ordered that the land in question be

recorded in the name of the petitioner.

(3 of 14) [CW-9106/2016]

5. Thereafter, the State Government preferred an appeal under

Section 75 of the Rajasthan Land Revenue Act, 1956 (hereinafter

referred to as 'the Act of 1956') before the Divisional

Commissioner, Udaipur assailing the order dated 27.10.2006

passed by the SDM after a lapse of about three years in 2009. An

application dated 13.04.2009 under Section 5 of the Limitation

Act, 1963 (hereinafter referred to as 'the Act of 1963') was also

preferred by the respondent State Goverment. The only ground

taken in the application under Section 5 of the Limitation Act is

that the respondent State Government was busy in the

government work and the copy of the revenue record could not be

obtained in time.

6. Thereafter, the Divisional Commissioner vide its order dated

11.05.2012 has allowed the application dated 13.04.2009 filed by

the respondent State Government under Section 5 of the Act of

1963 despite the fact that the respondents have failed to disclose

any sufficient cause so as to warrant condonation of delay of

about three years in filing the appeal.

7. Thereafter, the petitioner assailed the aforesaid order dated

11.05.2012 passed by the Divisional Commissioner, Udaipur

before the Board of Revenue in Revision Petition preferred under

Section 84 of the Act of 1956 and the Board of Revenue vide its

order dated 25.03.2015 has dismissed the Revision Petition filed

by the petitioner.

8. Then, the petitioner preferred a Review Petition under Section

86 of the Act of 1956 assailing the order dated 25.03.2015 passed

by the Board of Revenue, who in turn vide its order dated

(4 of 14) [CW-9106/2016]

18.04.2016 also dismissed the Review Petition preferred by the

petitioner.

9. Hence, being aggrieved by the order dated 18.04.2016 and

order dated 25.03.2015 passed by the Board of Revenue and also

with the order dated 11.05.2012 passed by the Divisional

Commissioner, Udaipur, the petitioner has filed this writ petition.

10. The learned counsel for the petitioner submits that the

Divisional Commissioner, Udaipur as well as the Board of Revenue

have committed grave error of law in allowing the application

under Section 5 of the Act of 1963 filed by the respondent State

Government contrary to the settled preposition of law.

11. The learned counsel for the petitioner also submits that the

petitioner has acquired valuable rights and unless there is

sufficient cause existing in the circumstances mentioned in the

application under Section 5 of the Act of 1963, the delay ought not

to have been condoned by the authorities below. In the instant

case, the application under Section 5 of the Act of 1963 preferred

by the respondent State Government is based on unfounded

grounds and there is no mention of any sufficient cause so as to

warrant condonation of delay.

12. The learned counsel for the petitioner further submits that in

the present case, there is a delay of about 27 months in filing the

appeal and grounds upon which the delay is sought to be

condoned cannot be termed as sufficient grounds which are

mandated under Section 5 of the Act of 1963. Merely, the fact that

contesting party is the State Government, there cannot be any

discrimination in favour of the State Government when the same

(5 of 14) [CW-9106/2016]

ground is not available to the private parties. Such differentiation

ought not to have been made between the State Government and

the private party by the authorities below.

13. The learned counsel for the petitioner also submits that there

is nothing on record to show that as to when the certified copies

were obtained by the respondent State Government which caused

delay in filing the appeal before the Divisional Commissioner,

Udaipur.

14. The learned counsel for the petitioner further submits that it is

also not mentioned that when the certified copies were sent to the

Department concerned and as to why the sanction could not be

accorded within reasonable time period and also, there is nothing

on record to show as to why paper proceedings could not be

processed after sanction was granted. It is settled preposition of

law that if any appeal is not presented within the stipulated time

period, it creates valuable rights in favour of the opposite party

and opposite party cannot be deprived of such valuable rights on

unfounded grounds.

15. The learned counsel for the petitioner also submits that there

is no material available on record before the authorities below

while passing the orders impugned which make the authorities

conclude that there existing sufficient grounds for condonation of

delay. The learned counsel for petitioner further submits that

merely on the disclosure made in the affidavit without explaining

the reasons, the respondents are not entitled for condonation of

delay and as such the orders impugned dated 11.05.2012 passed

by the Divisional Commissioner, Udaipur, and the orders dated

(6 of 14) [CW-9106/2016]

26.03.2015 and 18.04.2016 passed by the Board of Revenue

deserve to be quashed and set aside.

16. The learned counsel for the petitioner placed reliance on the

judgment passed by the Hon'ble Apex Court in the case of The

State of Madhya Pradesh & Ors. v. Bherulal (Special Leave

Petition (C) Diary No. 9217/2020) decided on 15.10.2020, the

relevant portion of the judgment is reproduced below:

"4. A reading of the aforesaid application shows that the reason for such an inordinate delay is stated to be only "due to unavailability of the documents and the process of arranging the documents". In paragraph 4 a reference has been made to "bureaucratic process works, it is inadvertent that delay occurs".

5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.

7.We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible."

17. The learned counsel for the petitioner also placed reliance on

the judgment dated 10.09.1999 passed in SBCWP 243/1998

State v. Amolak Chand and Ors., wherein the court held that:

(7 of 14) [CW-9106/2016]

"17. The submission of Mr. Soni was that by not condoning the delay and not deciding the revision on merits, the State Government was put to a great financial loss which was not proper. If according to the State it is put to a great loss then it was the duty of the State Government itself to find out who was the person at fault in not bringing the fact of passing the order by the Collector immediately to the authority for carrying the matter further by way of revision before the Board of Revenue. It appears that the State Government is not at all sincere to find out the person and fasten his liability. This is not only the case, several cases of the similar nature have been dismissed by the Board of Revenue as well as by this Court but so far the State Government has not bothered to find out the person who is responsible for this and not bothered to take action against such persons. It will not be even too late to take appropriate departmental proceedings against the concerned person and if such officer is retired, then the loss, if any, caused to the Government can be recovered either from his salary or pension. But, for its gross negligence, the State cannot ask the Court to entertain the petition and decide the same on merits when it is hopelessly time barred for which no explanation much less sufficient or proper explanation is offered.

18. In view of the above discussion, this petition fails and is hereby dismissed with no order as to costs."

18. The learned counsel for the petitioner further submits that

Courts has no power to extend period of limitation on equitable

grounds unless there is reasonable or satisfactory ground.

Reliance in this regard was placed by the on the order dated

19.09.1997 passed by Hon'ble Apex Court in the case of P.K.

Ramachandran v. State of Kerala and Ors., wherein the court

held that:

(8 of 14) [CW-9106/2016]

"5. This can hardly be said to be a reasonable, satisfactory or even a proper explanation for seeking condonation of delay. In the reply filed to the application seeking condonation of delay by the appellant in the High Court, it is asserted that after the judgment and decree was pronounced by the learned Sub Judge, Kollam on 30.10.1993, the scope for filing of the appeal was examined by the District Government Pleader, Special Law Officer, Law Secretary and the Advocate General and in accordance with their opinion, it was decided that there was no scope for filing the appeal but later on, despite the opinion referred to above, the appeal was filed as late as on 18.1.1996 without disclosing why it was being filed. The High Court does not appear to have examined the reply filed by the appellant as reference to the same is conspicuous by its absence from the order. We are not satisfied that in the facts and circumstances of this case, any explanation, much less a reasonable or satisfactory one had been offered by the respondent State for condonation of the inordinate delay of 565 days.

6. Law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds.

The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."

19. Per Contra, the learned counsel for the respondent submits

that presently as per the Jamabandi Samvat 2074-77, Araji No.

3046, 3047 and 3048 are registered in the name of Urban

(9 of 14) [CW-9106/2016]

Improvement Trust, Udaipur which has been registered vide

mutation entry number 3643, and therefore, the petitioner are not

entitled for any relief.

20. The learned counsel for the respondent also submits that due

to the new settlement of the area, presently the Araji No. 3046

admeasuring 0.4600 hectares, Araji No. 3047 admeasuring 0.2300

hectares and Araji No. 3048 admeasuring 0.0350 hectares has

been created vide Sabik Araji No. 1127 of Gram Titardi, in which

Sabik Araji No. 1127/7 admeasuring 5 Bighas and Sabik Araji No.

1127/32 admeasuring 5 Bighas was registered in the name of the

petitioner as Gair Khatedari Land vide mutation entry number 592

and 658.

21. The learned counsel for the respondent further submits that

as per the the new settlement of the area, presently the Araji No.

3046 admeasuring 0.4600 hectares, Araji No. 3047 admeasuring

0.2300 hectares and Araji No. 3048 admeasuring 0.0350 hectares

has been created vide Sabik Araji No. 1127 of Gram Titardi in

which Sabik Araji No. 1127/7 admeasuring 5 Bighas and Sabik

Araji No. 1127/32 admeasuring 5 Bighas was registered in the

name of the petitioner as Gair Khatedari Land vide mutation entry

number 592 and 658; and there is no iota of proof to show that

the said new settlement of the area has been done without

following due process of the law, hence, it cannot be said to be

unjustified as per the procedure laid down.

22. The learned counsel for the respondent placed reliance on the

judgment dated 30.01.1996 passed by the Hon'ble Apex Court in

(10 of 14) [CW-9106/2016]

the case of State of Haryana v. Chandra Mani, wherein the

court held that:

"11. It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court-be it by private party or the State-are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the Community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay- intentional or otherwise-is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. There fore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merit unless the case is hopelessly without merit. No separate standards to

(11 of 14) [CW-9106/2016]

determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the case whether any legal principles are involved for decision by the course or whether cases require adjustment and should authorise the officers take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Considered from this perspective, it must be held that the delay of 109 days in this case has been explained and that it is fit case for condonation of the delay."

23. Heard learned counsel for the parties and perused the

material available on record as well as the judgments cited at bar.

24. At the outset, this court observes that the respondent State

Government has not provided any reason or justification for the

inordinate delay. The respondent State Government presented an

appeal on 13.04.2009, i.e; after 899 days, before the Divisional

Commissioner, Udaipur assailing the order dated 27.10.2006

passed by SDM. There is a delay of 869 (899 days minus 60 days

= 839 days) days for which no plausible explanation has been

given by the respondent State Government.

(12 of 14) [CW-9106/2016]

25. This court also observes that according to Section 78 of the

Act of 1956 lays down the limitation for filing appeals and the

section reads as:

"78. Limitation for Appeals - No appeal shall lie -

(a) to the Collector or Land Records Officer or Settlement Officer after the expiration of thirty days from the date of the order to which objection is made; or

(b) to the Revenue Appellate Authority or Settlement Commissioner or the Director of Land Records after the expiration of sixty days from such date; or

(c) to the Board after the expiration of ninety days from such date."

26. This court further observes that the respondent have not

satisfied the requisite standards for condonation of delay and has

not presented adequate grounds to warrant the condonation of

delay. The reasons cited by the Respondent State Government do

not sufficiently establish that the delay was beyond their control or

that they acted with due diligence in pursuing their rights.

27. This court also observes that the law requires an applicant

seeking condonation of delay to provide a clear and convincing

explanation of the circumstances leading to the delay and the

Respondent, being a government authority, is held to a higher

standard of responsibility and diligence in adhering to legal

timelines. Thus, in the absence of substantial reasons, the

condonation of delay cannot be allowed. The relevant part of the

(13 of 14) [CW-9106/2016]

application dated 13.04.2009 filed under Section 5 of the Act of

1963 is reproduced hereunder:

"यह कि विद्वान अधीनस्थ न्यायालय द्वारा दिनांक 26-02-2006 के दिवस प्रकरण को अन्तिम रूप से निस्तारित किया गया जिसकी जानकारी अपीलान्ट को नहीं हो सकी तथा अपीलान्ट राजकीय कार्य में व्यस्त होने के कारण समय पर अपील नहीं कर सके एवं तथ्यात्मक रिपोर्ट दे री से प्रस्तत ु हुई थी इसलिए तथ्यात्मक रिपोर्ट प्राप्त होने पर एवं उक्त प्रकरण पर प्रकाश डालने वाले अहम राजस्व रे कर्ड की प्रमाणित प्रतियां समय पर प्राप्त नहीं हो पाई जिससे कथित अपील समय रहते प्रस्तत ु नहीं की जा सकी।"

28. This court finds that the respondent State Government in a

casual and cursory manner has set out the reasons for delay in

filing the appeal. No justified reason has been assigned as to the

fact that on which date the order dated 27.10.2006 came to the

knowledge of the respondent State Government, neither the date

on which the factual report was received is disclosed nor the

reason and the date of receiving the certified copies of the

relevant documents is disclosed in the application dated

13.04.2009 filed under Section 5 of the Act of 1963. The period of

limitation as prescribed under Section 78 of the Act of 1956 is 60

days whereas the respondent State Government chose to file the

appeal after a delay of 839 days.