Allahabad High Court
Mool Chand Bharadwaj vs State Of U.P. And 3 Others on 8 February, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 7 Case :- WRIT - C No. - 3246 of 2023 Petitioner :- Mool Chand Bharadwaj Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Anurag Tiwari,Pramod Kumar Singh Counsel for Respondent :- C.S.C.,Sunil Kumar Singh Hon'ble Chandra Kumar Rai,J.
Heard Mr. Pramod Kumar Singh, Counsel for the petitioner, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents and Mr. Sunil Kumar Singh for respondent No.4, Gram Sabha.
With the consent of the parties, the writ petition is being heard and disposed of without inviting counter affidavit.
The brief facts of the case are that petitioner purchased the land area 64.95 square yard in the name of his daughter-in-law namely Kumud Rani through registered sale deed 21.09.2020. After purchase of the aforementioned plot, petitioner constructed small residential house in the same and residing along with his family members. A proceeding under Section 67 of the U.P. Revenue Code, 2006 has been initiated in respect to the Khasra No. 538 Tehsildar vide order dated 30.11.2021 passed order for ejectment and damages against the petitioner in respect to Khasra No. 538. Against the order dated 30.11.2021, petitioner filed recall application on 30.12.2021 which was rejected by the Tehsildar vide order dated 02.08.2022. Against the order dated 02.08.2022, petitioner filed appeal under Section 67(5) of the U.P. Revenue Code, 2006 which was dismissed by Appellate Court vide order dated 19.12.2020, hence this writ petition.
Counsel for the petitioner submitted that petitioner purchased the plot in dispute through registered sale deed and constructed the small residential house over the same. He further submitted that proceeding 67 has been conducted in ex-parte manner and without giving reasonable opportunity of hearing, the order for ejectment and damages has been passed by the Tehsildar. He further submitted that recall application filed within 30 days has been rejected and the appeal filed by the petitioner has also been dismissed without considering the case on merit. He further submitted that petitioner be given proper opportunity of hearing in the proceeding under Section 67 of U.P. Revenue Code, 2006 before passing the order of ejectment and damages. He submitted that in place of deciding the matter on technical grounds, the matter should be adjudicated on merit. He placed reliance upon the judgment of the Apex Court reported in AIR 1987 Supreme Page 1353 Land Acquisition Anantnag vs. Mst. Katiji and others in order to demonstrate that the matter should be decided on merit in place of deciding the same on technical grounds.
On the other hand, Mr. Abhishek Shukla, learned Counsel for the State submitted that land in dispute is recorded as pond, as such, no right will accrue to the petitioner in spite of the execution of sale deed by any person in favour of the petitioner. He further submitted that in the sale deed, the plot number is not mentioned , as such, the case set up by the petitioner that petitioner has purchased the disputed Khasra No. 538 by way of registered sale deed is not correct and petitioner is not entitled to any further opportunity before the Tehsildar.
In reply, Counsel for the petitioner submitted that admittedly petitioner is in possession of Khasra No. 538 and has raised the construction, as such, reasonable opportunity of hearing is required before passing order of ejectment and damages against the petitioner.
I have considered the arguments advanced by learned Counsel for the parties and perused the record.
There is no dispute about the fact that proceeding under Section 67 of the U.P. Revenue Code, 2006 has been conducted in respect of Khasra No. 538 over which petitioner is in possession and his construction is situated over the same. There is also no dispute about the fact that order for ejectment and damages passed against the petitioner has been maintained in appeal.
Since petitioner filed the recall application against the order of the ejectment and damages passed by the Tehsildar within 30 days but without deciding the same on merit, the same was rejected and even the appeal filed by the petitioner under Section 67(5) of the U.P. Revenue Code, 2006 has been decided without considering the case on merit. The appeal has been dismissed only on the ground that petitioner was given proper opportunity before the Court of Tehsildar.
Case law cited by learned Counsel for the petitioner is relevant for consideration. Paragraph No.3 of the judgment rendered in Collector Land Acquisition Anantnag (Supra) is relevant, which is as under :-
"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."
Considering the entire facts and circumstances as well as ratio of law laid down by Apex Court, the interest of justice requires that petitioner be given proper opportunity by the Tehsildar before deciding the case under Section 67 for ejectment and damages against the petitioner.
In view of the facts and circumstances mentioned above, the impugned order dated 19.12.2022 passed by respondent No. 2, District Magistrate/ Collector, Hapur and orders dated 30.11.2021 and 02.08.2022 are passed by the respondent No.3, Assistant Collector/ Tehsildar (Judicial) Hapur are liable to be set aside and the same are hereby set aside.
Writ petition stands allowed in part and matter is remitted back before the Tehsildar respondent No.3 to decide the case Under section 67 of U.P. Revenue Code, 2006 afresh after giving proper opportunity to the petitioner. Respondent No.3 shall decide the case expeditiously preferably within period of three months from the date of production of certified copy of this order.
Order Date :- 8.2.2023 Vandana Y.