Allahabad High Court
Mahipal Singh vs Board Of Revenue And Others on 13 May, 2020
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 04.03.2020 Delivered on 13.05.2020 In Chamber Case :- WRIT - B No. - 70097 of 2011 Petitioner :- Mahipal Singh Respondent :- Board Of Revenue And Others Counsel for Petitioner :- S.S. Shukla,Santosh Kumar Tiwari Counsel for Respondent :- C.S.C.,Dr.M. Tandon Hon'ble Prakash Padia,J.
1. Heard Sri S.S. Shukla and Sri Santosh Kumar Tiwari, learned counsel for the petitioner and Smt. Praveen Shukla, learned Standing Counsel for the respondent-State.
2. The petitioner has preferred the present writ petition inter-alia with the following prayers :-
"I. Issue a writ, order or direction in the nature of certiorari by quashing the dated 21.12.2009 contained in (Annexure -No.6) passed by Collector Finance and Revenue, Ghaziabad in Case No.8 of 2008-09 under Section 157-AA State Versus Mahipal Singh, order dated 26.5.2010, 4.5.2011 passed by Additional Commissioner Meerut in Revision No.39 of 2009-10 contained in (Annexure-No.7 and 9), and order dated 10.8.2011 signed on 30.8.11 passed by Member Board of Revenue Circuit Court Meerut in Revision No.68 of 2010-11 Mahipal Singh Versus State of U.P. contained in (Annexure- No.11) to this writ petition.
II. Issue a writ, order or direction in the nature of mandamus commanding the respondent No.3 to pass a reasoned and speaking order in mutation proceeding of mutation case No.421 of 2008-09 Mahipal Singh Versus Tara Chand in regard to sale-deed dated 5.3.2009 in accordance with law."
3. The facts in brief as contained in the writ petition are that the petitioner belongs to the caste of Jatav, which is a scheduled caste. One Tara Chand son of Jaggan Singh also belongs to caste of Jatav. One Jaichand son of Ram Dhan was tenure holder of the Arazi Khata No.568 Khasra No.1136 area 2 bigha situated in village Bhanaida Pargana Loni Tehsil and District Ghaziabad, executed a sale deed dated 1.1.2002 in favour of the Tara Chand. The aforesaid sale deed was duly registered in favour of Tara Chand.
4. Tara Chand applied for mutation under Section 34 of U.P. Land Revenue Act on the basis of sale deed in question. The Revenue Officers passed mutation order in favour of Tara Chand and the name of Tara Chand was duly recorded in the revenue records as well as in the Khatauni as bhumidar with transferable rights. The petitioner purchased the aforesaid arazi from Tara Chand by way of registered sale deed dated 5.3.2009 on consideration of Rs.8,75,000/-. The aforesaid sale deed was duly registered in the office of Sub Registrar, Ghaziabad. Subsequently, petitioner moved an application for mutation of the land in question in his name. On the said application report was submitted by the Tehsildar, Ghaziabad, on 09.06.2009 before the Sub Divisional Magistrate. On the basis of the said report the Sub Divisional Magistrate, Ghaziabad, submitted a report on 15.6.2009 before the Collector to initiate proceedings as provided under Section 161/167 of the The U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred as U.P.Z.A. & L.R. Act). Subsequent to the aforesaid a notice was issued to the petitioner stating therein that the vendor belongs to schedule caste but the land in question was obtained by way of patta and he has not taken permission from the Collector prior to execution of the sale deed as per the provisions contained in Section 157-AA of the U.P.Z.A. & L.R. Act. A detailed reply was submitted by the petitioner in response to the aforesaid show cause notice. It is stated in the reply that there was no need to get the permission from the Collector prior to execution of the sale deed thus there is no violation of the provisions of Section 157-AA of the provisions and none of the provisions contained in the act were violated. Ultimately an order dated 21.12.2009 was passed by the Additional Collector (Finance and Revenue), Ghaziabad against the petitioner.
5. Aggrieved against the aforesaid order petitioner preferred a revision being Revision No.39/10 in the court of Commissioner, Meerut Division, Meerut. The aforesaid revision was dismissed in default by the Additional Commissioner, Meerut Division, Meerut vide its order dated 26.5.2010. An application was filed by the petitioner to recall the order dated 26.5.2010 on 29.3.2011. The aforesaid recall application was rejected by the Additional Commissioner, Meerut Division, Meerut vide its order dated 4.5.2011. The recall application was rejected on the ground that no separate application was filed by the petitioner for condonation of delay.
6. Against the aforesaid order dated 4.5.2011 passed by the Additional Commissioner petitioner preferred a revision being Revision No.68/10-11 before Board of Revenue, Circuit Bench, Meerut. The aforesaid revision was also rejected by the Board of Revenue vide its order dated 10.8.2011. Challenging the aforesaid orders, the petitioner has preferred the present writ petition.
7. It is argued by the learned counsel for the petitioner that the order passed by the Additional Collector (Finance and Revenue), Ghaziabad dated 21.12.2009 is absolutely illegal. It is further argued that the provisions of Section 157-AA (5) of the Act was introduced w.e.f. 26.6.2002 and would not be applicable to sale deed executed on 1.1.2002 and as such sale deed could not have been declared void under Section 167 of the Act.
8. It is further argued by the learned counsel for the petitioner that though statutory revision was preferred by him before the Commissioner, Meerut Division, Meerut, which was dismissed in default vide its order dated 26.5.2010. In order to recall the aforesaid order, a recall application was filed by the petitioner before the Additional Commissioner on 29.3.2011. The said application was rejected by him vide its order dated 4.5. 2011 on the ground that (i) the restoration application is highly time barred (ii) no separate application for condonation of delay has been filed.
9. The order passed by the Additional Commissioner, Meerut Division, Meerut dated 4.5.2011 was challenged by the petitioner by filing a revision before the Board of Revenue as provided under Section 333 of the U.P.Z.A. & L.R. Act, the same was also dismissed by the Board of Revenue, Circuit Bench, Meerut vide its order dated 30.8.2011.
10. It is further argued that even in the absence of a written application for condonation of delay, the oral application was also liable to be entertained. It is further argued that there were no inordinate delay in filing the restoration application since the same was filed only after 10 months. It is further argued that cogent reasons were given in the restoration application to condone the delay but the same was not taken into consideration while rejecting the same. The cogent reasons were given in the restoration application for delay in filing the same.
11. On the other hand it is argued by the learned Standing Counsel that since the sale deed, which was executed in favour of the petitioner was void in law and hit by the provisions of Section 157-A and 157-AA of the U.P.Z.A. & L.R. Act. The orders passed by the Additional Collector (Finance and Revenue), Ghaziabad are absolutely perfect and valid orders. It is further argued that the revision filed by the petitioner before the Board of Revenue was also rightly dismissed. In view of the same, it is argued that the petitioner is not entitled for any relief as claimed by him in the present writ petition.
12. Counter and rejoinder affidavits have been exchanged between the parties.
13. With the consent of learned counsel for the parties, present writ petition is being disposed of.
14. From perusal of the record, it is clear that the revision preferred by the petitioner before the Commissioner was dismissed in default on 26.5.2010. A restoration application was filed to recall the aforesaid order. The said application was rejected by him on 4.5.2011 on the ground that the recall application was filed after 10 months but no application for condonation of delay was filed as provided under Section 5 of the Indian Limitation Act.
15. In this view of the matter, the recall application was rejected being highly time barred though a revision was preferred by the petitioner against the aforesaid order dated 4.5.2011 before the Board of Revenue but the Board of Revenue also rejected the same without application of mind and by a non speaking order on 30.8.2011. From perusal of the aforesaid order, it is absolutely clear that there is no application of mind whatsoever while passing the aforesaid orders. The basic grounds taken while rejecting the application for restoration was that no separate application was filed by the petitioner for condonation of delay.
16. In the case of Meghraj Vs. Jesraj Kasturjee reported in AIR 1975 Mad 137 it was observed that in the absence of formal written application for condonation of delay, the court should circumvent technicality and afford a reasonable opportunity to the aggrieved party to mend matters. Otherwise it would lead to miscarriage of justice. Paragraph 4 of the aforesaid judgement reads as follows :-
"The consensus, therefore, appears to be this. If under explainable circumstances an appeal or an application is filed in Court, but without a formal application or a written application for excusing the delay in the presentation of the same, then the Court should circumvent technicality and afford a reasonable opportunity to the aggrieved party to mend matters. Otherwise, it would lead to miscarriage of justice."
17. A bare perusal of the order of the revisional authority would show that the restoration application was dismissed as barred by time as it did not accompany with an application for condonation of delay when it was filed. It does not appear from the said order that any opportunity was given by the revisional authority to the petitioner to move an application for condonation of delay. If the restoration application was defective the revisional authority should have given an opportunity to the petitioner to remove the defect, moreover an application for condonation of delay may be oral also.
18. In the case of Firm Kaura Mal Bishan Dass vs. Firm Mathra Dass Atma Ram reported in AIR 1959 PUNJAB 646 it was held that merely because there was no written application filed by the appellant is hardly a sufficient ground for refusing him the relief, if he is otherwise entitled to it.
19. A similar observations were made by the Gujarat High Court in the case of M/s Markland Pvt. Ltd. and others vs State of Gujarat, reported in AIR 1989 GUJARAT 44. It has been held that in the absence of written application for condonation of delay, the delay in filing the appeal can be condoned.
20. Identical view was taken by this Court in Indrasani Devi vs. D.D.C., Varanasi reported in 1981 ALJ 637, which was followed by another Single Judge of this Court in the case of Muneshwari Devi vs. Jitan Singh reported in 1993 AWC 792.
21. More or less, the same view has been taken in the case of Smt. Shakuntala Devi vs. Banwari Lal and others, reported in 1997 AWC 622.
22. The filing of the application for condonation of delay is in the realm of procedure. The procedure as far as possible cannot and should be interpreted in such a way so as to take away the right of the parties.
23. The Apex Court with a reference to Section 5 of the Limitation Act in N. Balakrishnan vs. M. Krishnamurthy reported in JT 1998 (6) SC 242 has laid down that the primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. In the judgement, it has been held that rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Ultimately, in para 14, it has been stated that it must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. It has been laid down that in such matters, approach of the court should be justice oriented. The paragraph 14 of the aforesaid judgement is reproduced hereinbelow :-
"14. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."
24. The words "sufficient cause" should receive a liberal construction so as to advance substantial justice. The Supreme Court in the case of Shakuntala Devi vs. Kuntal Kumari reported in AIR 1969 SC 575 held that the word "sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. If the appellant makes out sufficient cause for the delay, the Court may in its discretion condone the delay in filing an appeal. The relevant paragraph 7 in this regard is reproduced hereinbelow :-
"7. The next question is whether the delay in filing the certified copy or, to put it differently, the delay in re-filing the appeal with the certified copy should be condoned under Section 5 of the Limitation Act, If the appellant makes out sufficient cause for the delay, the Court may in its discretion condone the delay. As laid down in Krishna v. Chathappan (4) "Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words "sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafides is importable to the appellant."
25. Similar view was again taken by the Supreme Court in the case of State of West Bengal vs. The Administrator, Howrah Municipality reported in AIR 1972 SC 749. It was held in the aforesaid case by the Supreme Court that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. The relevant paragraph 30 is reproduced hereinbelow :-
"From the above observations it is clear that the words "sufficient cause" should receive a liberal construction so, as to advance substantial justice when no negligence nor inaction nor is, imputable to a party."
26. In the case of Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others reported in AIR 1987, S.C. 1353, it was held by the Supreme Court that the Court should adopt liberal approach for condonation of delay. Certain observations were made by the Sureme Court in paragraph 3 of the aforesaid judgement, which is reproduced hereinbelow :-
"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 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 con- doned 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."
27. In so far as the reliefs claimed in the present writ petition are concerned, the petitioner has challenged the order dated 21.12.2019 passed by the Additional Collector (Finance and Revenue), Ghaziabad by which the mutation application filed by him was rejected. The said order was passed by the Additional Commissioner is on merit. Against the aforesaid order statutory remedies were available to the petitioner and the same were duly availed by him by filing a revision before the Commissioner, Meerut Division, Meerut. Though initially the revision was dismissed in default by the Additional Commissioner, Meerut Division, Meerut vide its order dated 26.5.2010, a recall application was filed in order to recall the aforesaid order but since the same was not supported by a separate application for condonation of delay, the same was rejected by him on 04.05.2011. Against the order dated 04.05.2011 though a statutory revision was preferred by the petitioner as provided under Section 333 of the Act, 1950, the same was also rejected by the Board of Revenue, Circuit Court, Meerut without providing opportunity to the petitioner to file an application for condonation of delay.
28. Taking into consideration what has been stated hereinabove, in my opinion the order passed by the Commissioner dated 4.5.2011 (annexure 9 to the writ petition) rejecting the restoration application as well as the order dated 30.8.2011 passed by the Board of Revenue, Circuit Bench, Meerut, (annexure 11 to the writ petition), were passed without giving an opportunity to the petitioner to file an explanation for condonation of delay hence not sustainable and are liable to be quashed.
29. Learned counsel for the petitioner also relied upon a Division Bench judgement of this Court in Central Excise Appeal No.76 of 2010 (Sukhdeo Singh & another Vs. Customs, Excise & Service Tax & Others) decided on 15.4.2011. The relevant paragraph of the aforesaid judgement is reproduced hereinbelow :-
"Taking into consideration what has been stated above, in our considered view, the Commissioner (Appeals) was not justified in rejecting the appeal as barred by time without giving an opportunity to the appellant to file an application explaining the delay.
In normal circumstances, we would have referred the matter back to the authority concerned for consideration of the application for condonation of delay. But looking to the fact that the sufficient time has elapsed, it is not desirable to restore the matter back for consideration of delay condonation application.
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Considering that the grounds disclosed by the appellants are sufficient cause, we, therefore, condone the delay in filing the appeal before the Commissioner (Appeals), Customs & Central Excise, Allahabad."
30. Taking into consideration the law laid down by a Division Bench of this Court in the aforesaid case, since the sufficient time has lapsed it is not desirable to restore the matter back for consideration of delay condonation application considering that the grounds disclosed by the petitioner are sufficient cause. In view of the above I hold that the Commissioner, Meerut Division, Meerut should have condoned the delay as he was not justified in rejecting the restoration application as barred by time.
31. The petitioner has already availed a statutory remedy by filing a revision against the order passed by the Additional Collector (Finance and Revenue), Ghaziabad. In this view of the matter, without interfering in the order dated 21.12.2009 passed by the Additional Collector (Finance and Revenue), Ghaziabad, a mandamus is issued to the revisional authorities to decide the revision on merits.
32. The matter is restored back to the Commissioner, Meerut Division, Meerut to hear and decide the Revision No.39/10 on merits.
33. In the facts and circumstances of the case, the Court is of the view that the orders 26.5.2010 and 04.05.2011 passed by Additional Commissioner Meerut and the order dated 10.8.2011 passed by Member Board of Revenue Circuit Court Meerut are liable to be set aside and they are hereby set aside. The Commissioner Meerut Division Meerut is directed to decide the revision preferred by the petitioner being Revision No.39 of 2009-10 (Mahipal Vs. State of U.P. and others) on merits.
34. In the result the writ petition succeeds and is partly allowed.
35. No order as to costs.
Order Date :- 13.5.2020 Pramod Tripathi