Jharkhand High Court
Md.Saifullah & Ors. vs State Of Jharkhand & Ors. on 22 April, 2016
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (C) No. 7351 of 2006
1. MD.SAIFULLAH
2. MD SAIDULLAH
3. MD SAMIULLAH
4. MANZOOR QUADIR
5. ZAFAR IMAM
ALL SON OF MD ZAHOOR HUSSAIN, RESIDENT OF CHATRA PO
AND PS CHATRA
6. AYODHYA RAM SON OF GARIB RAM
7. RAMCHANDRA RAM
8. CHAMRI RAM
SL. NO.7 & 8 SON OF LATE SUKAR RAM
9. BEDO SAO
10. NIRANJAN SAO
SL. NO.9 & 10 BOTH SON OF LATE SUKAR RAM
SL. NO.6 TO 10 RESIDENT OF VILLAGE SARAGAON PO AND PS
ITKHORI CHATRA ... ... PETITIONERS
VERSUS
1. STATE OF JHARKHAND THROUGH THE DEPUTY
COMMISSIONER, CHATRA
2. THE PRINCIPAL CHIEF CONSERVATOR OF FOREST, BIHAR
PATNA, NOW JHARKHAND RANCHI
3. THE DIVISIONAL FOREST OFFICER, KODERMA FOREST
DIVISION, KODERMA
4. THE FOREST RANGE OFFICER, CHAUPARAN HAZARIBAGH
5. THE FORESTER, KARMA CHATRA ..... ... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
FOR THE PETITIONERS: MR. AYUSH ADITYA, ADV
FOR THE STATE : MR. AMIT KR. VERMA, JC TO SC (L & C)
5/ Dated: 22nd April, 2016
Per SHREE CHANDRASHEKHAR, J.
Challenging order dated 27.09.2006 in Title Appeal
No.22 of 2006 whereby, delay in filing title appeal has been
condoned, the present writ petition has been filed.
2. Heard.
3. The learned counsel for the petitioners submits that the
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suit was decreed in favour of the plaintiffs on contest on
19.03.1997, against which title appeal was filed on 20.09.2006. The appellants did not give plausible explanation for delay of more than 9 years except, taking the plea of inadvertence and bonafide mistake on the part of the concerned officers. It is contended that the plaintiffs who are in possession of the suit land and in whose favour the trial court has declared the title cannot be dragged to contest the title appeal filed after a delay of 9½ years.
4. The learned counsel for the respondentState of Jharkhand submits that it is not the case pleaded by the plaintiffs/writ petitioners that the plea taken on behalf of the defendants is false. It is stated that the suit land is a large chunk of land which was acquired under notification issued in the year, 1953 and the said land is in possession of the State.
5. It is well settled that delay does not extinguish the right of a party, it merely denies relief to a party. While dealing with an application under Section 5 of the Limitation Act, the Court is required to consider the stake of the parties, the probable loss which may be caused to a party and the laches on the part of the applicant. In "M.K. Prasad Vs. P. Arumugam" (2001) 6 SCC 176, it has been held that the discretion vested in the Court has to be exercised to advance substantial justice. In the said case the Hon'ble Supreme Court held as under,
10. "............. Even though the appellant appears not to be as vigilant as he ought to 3 have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable............."
6. Title Suit No.17 of 1991 was filed for a declaration that the suit land is raiyati land and the plaintiffs have title over the suit land. The defendant, the then State of Bihar, did not file written statement and vide order dated 22.01.1993, it was debarred from filing written statement and the suit was posted for exparte hearing. Subsequently, after the exparte order was recalled, the defendantState of Bihar and others filed written statement pleading that an area of 40.35 acres in Plot No.230 of villageSaragaon, PSItkhori was notified under Section 29 of the Forest Act and it was reserved forest under Section 30 of the Act. The suit was decreed vide judgment and order dated 19.03.1997. The plaintiffs initiated Execution Case No.04 of 2005 in which the defendants appeared on 16.08.2005 and filed their objection, which was rejected vide order dated 25.04.2006. The appellantState of Jharkhand thereafter, filed Title Appeal No.22 of 2006 on 20.09.2006.
7. A perusal of the application under Section 5 of the Limitation Act discloses that appellantState took a plea that the Divisional Forest Officer who had received a copy of the judgment in Title Suit No.17 of 1991 made requisition for expenses for filing 4 appeal however, in the meantime, he was transferred and the file was not put up before his successor and thus, no step could be taken due to lack of knowledge. Before the appellate court, it was pleaded that a copy of judgment and decree dated 19.03.1997/ 02.04.1997 was received by the Divisional Forest Officer, Koderma on 11.04.1997 and the said officer requested the Government Pleader, Hazaribagh vide letter dated 05.05.1997 to file title appeal. The Government Pleader wrote letter dated 06.05.1997 requesting the Divisional Forest Officer to deposit Rs.6,000/ as filing expenses whereupon, the Divisional Forest Officer requested the Conservator of Forest, Hazaribagh on 23.06.1997 for allotment of Rs.6,000/ for filing the appeal. In the meantime, the Government Pleader was informed about nonavailability of allotment vide letter dated 23.06.1997 however, he was requested to keep the papers for filing title appeal ready. In the meantime, the Divisional Forest Officer was transferred and thereafter, file was not placed before the successor officers. Only when a notice in Execution Case No.04 of 2005 was received, the matter was brought to the knowledge of Divisional Forest Officer who immediately authorised R.O.F., Chauparan to take necessary steps. The Additional Public Prosecutor was also authorised vide letter dated 21.09.2005 to take all necessary steps for filing appeal against the judgment and decree in Title Suit No.17 of 1991. In the meantime, objection petition was filed in the Execution Case on 01.12.2005.
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8. It was pleaded that the Additional Public Prosecutor was not keeping good health and he could not give information to the D.F.O. on time. The said A.P.P. was said to be bedridden and unable to attend the court and he issued a letter stating that he was admitted in CMC, Vellore for a longtime. On 12.09.2006, the Range Officer, Chauparan informed the D.F.O. that the Additional Public Prosecutor was not appearing in the case and accordingly, he authorised him to take necessary steps for filing the Title Appeal. It has also been brought on record that disciplinary proceeding was initiated against the officer concerned. In the aforesaid facts, the Appellate Court held that the appellants have shown just and reasonable cause for not filing the appeal within the period of limitation.
9. Considering the claim staked by the respondentState of Jharkhand over the suit land, it is apparent that in the Title Appeal the respondentState has valuable interests involved. No doubt, there was laches on the part of the concerned officer after the then Divisional Forest Officer was transferred however, it is expedient in the interest of justice that the respondentState is granted opportunity to contest the order passed in Title Suit No. 17 of 1991, on merits. Of course, the petitioners would be put to inconvenience due to laches on the part of the officer of the State, in "M.K. Prasad" case, the Hon'ble Supreme Court has observed that, the parties may be compensated by awarding exemplary cost. 6
10. Considering the aforesaid facts and circumstances, I am not inclined to interfere in the matter and, the writ petition is dismissed however, with cost of Rs.50,000/ imposed upon the respondentState of Jharkhand which shall be paid to the petitioners, within 6 weeks.
11. Stay granted vide order dated 15.02.2008 stands vacated.
12. The lower court is directed to proceed with Title Appeal No.22 of 2006, in accordance with law.
13. A copy of the order be transmitted to the court concerned by FAX, forthwith.
(Shree Chandrashekhar, J.) R.K./AFR