Madhya Pradesh High Court
M/S Assotech C.P. Infrastructure Pvt. ... vs The State Of Madhya Pradesh Thr on 25 October, 2018
1
THE HIGH COURT OF MADHYA PRADESH
W.P. No.20952/2018
(M/s Assotech C.P. Infrastructure Pvt. Ltd. Vs. State of M.P. and others)
Gwalior, dated: 25.10.2018
Shri P.K. Dwivedi, learned counsel for the petitioner.
Ms. Nidhi Patankar, learned Government Advocate for
the respondents/State.
Shri Prakash Bararu with Shri S.K. Sharma, learned counsel for respondent No.4 Writ as well as supervisory jurisdiction of this Court under Articles 226 and 227 of the Constitution is invoked to assail the order dated 04.07.2018 passed by the Board of Revenue, Gwalior in Case No.24/Appeal/14-15 vide Annexure P/12 allowing the revision preferred by private respondent herein and in the process setting aside the order of SDO passed on 05.08.2017 by which appeal of petitioner herein which was dismissed by the SDO for non- prosecution, was restored.
For the sake of clarity, it is appropriate to delineate the factual matrix involved in a chronological manner. An order under Section 250 of Madhya Pradesh Land Revenue Code (for brevity "MPLRC") was passed against the petitioner herein directing removal of encroachment made on the property of the private respondent herein and imposing cost upon petitioner to the tune of Rs.14,97,064/-. Aggrieved, the petitioner herein preferred an appeal u/S.44 of the MPLRC before the SDO. This appeal of the petitioner suffered dismissal due to non-prosecution on 20.03.2016 at the hand of the SDO. To restore the said appeal, an application vide Anneuxre P/10 was preferred assigning the reason that the 2 employee entrusted with the pursuing the appeal on behalf of petitioner/company failed in his duties and therefore petitioner/company remained unrepresented before the SDO on repeated occasions leading to dismissal of appeal for want of prosecution. An application u/S.5 of the Limitation Act along with the said application for restoration was also filed seeking condonation of delay of about 10 months in filling the application for restoration. The same reason of the employee/officer-in-charge being derelict in his duty of ensuring proper and prompt representation and the said employee having left the service of the company, was assigned.
The SDO vide order dated 05.08.2017 restored the appeal after finding the cause to be bona fide.
Thus, the issue herein is the legality and validity of the order of the Board of Revenue allowing the revision and in the process holding that no sufficient bonafide cause was made out by petitioner to explain delayed filing of restoration application before the SDO.
Pertinently this Court by order dated 07.09.2018 has stayed the effect and operation of the impugned order of Board of Revenue.
The delay of about 10 months in preferring application for restoration of appeal dismissed for want of prosecution by the SDO, was explained by citing the reason of Officer- in-charge of the company betraying the trust reposed in him, by failing to attend hearings before the SDO. The conceptual difference between a juristic person and a biological person was emphasized by the petitioner/company before the SDO to explain the delay.
3The SDO condoned the delay by keeping in view the law laid down in various decisions of the Apex court which unanimously hold that an application for condonation of delay ought to be construed liberally and efforts should be made to condone the delay as far as possible unless there is no explanation worth accepting or the explanation reeks of procrastination and indolence showing lack of bona fides.
The extract of one of the decisions of the Apex Court in Anantnag and another Vs. Mst. Katiji and others, AIR 1987 SC 1353 on the said aspect of liberal construction of application u/S.5 of the Limitation Act is reproduced below for ready reference and convenience:-
"The legislature has conferred the power to condone delay by enacting Section 51 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 meaning- ful 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:
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 con- doned the highest that can happen is that a cause would be decided on merits after hearing the parties.4
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."
When the findings rendered by the Board of Revenue are tested on the anvil of law laid down by the Apex Court, it is seen that the Board of Revenue will passing the impugned order found that petitioner/company had failed to explain due diligence in appointing another officer-in-charge to be vigilant of the hearings in the appeal before the SDO. In sum and substance, the Board of Revenue allowed the revision by holding that in the absence of day to day explanation of delay of about 10 months, the application for restoration of petitioner/company ought not to have been allowed.
After hearing learned counsel for the rival parties and 5 taking into account the gamut of facts and keeping in view the law laid down by the Apex Court, this Court is of the considered view that the Board of Revenue adopted a parochial and conservative view while dealing with the issue of condonation of delay.
The paramount duty cast upon every Court of law in every case which come before it, is to reach the truth by dwelling upon the merit of the matter and avoid deciding matters on technicalities unless the technicalities are so overbearing and paramount that they eclipse all possible conceivable chances of an order on merit.
In view of above, this Court exercising its writ and supervisory jurisdiction is compelled to step in.
Consequently, the impugned order of the Board of Revenue dated 04.07.2018 passed in Case No.24/Appeal/14-15 contained in Annexure P/12 is set aside and the order of the SDO dated 05.08.2017 restoring the first appeal preferred by petitioner against order dated 26.02.2015 stands affirmed. The SDO may now proceed to adjudicate the first appeal u/S.44 MPLRC filed by petitioner herein on merits.
No cost.
(Sheel Nagu) Judge 25.10.2018 SS SATEESH KUMAR SEN 2018.10.25 18:33:58 -07'00'