Allahabad High Court
Arun Kumar And Another vs State Of U.P. And 4 Others on 22 July, 2022
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 32 Case :- WRIT - B No. - 1613 of 2022 Petitioner :- Arun Kumar And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Pavan Kumar Srivastava Counsel for Respondent :- C.S.C.,Rajkishore Singh Hon'ble Dinesh Pathak,J.
Heard Sri Pavan Kumar Srivastava, learned counsel for the petitioners, Sri Vineet Kumar Singh, learned counsel for private-respondent no.5 and learned Standing Counsel representing respondent nos. 1 to 4.
By way of present writ petition, the petitioners have invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India challenging the order dated 23.9.1975 passed by Commissioner, Allahabad Division, Allahabad and order dated 17.8.2021 passed by Board of Revenue, Allahabad rejecting the highly time barred restoration application dated 3.7.2019 filed against the order dated 30.9.1986 passed in Revision No. 106 of 1975-76/Fatehpur.
Facts culled out from the averment made in the writ petition are that proceeding has been initiated for realization of the loan amount as land revenue. The property of Sankata Prasad (father of present petitioners) was sold in auction sale dated 25.7.1974 in favour of Balbir (respondent no.5). Feeling aggrieved against the said auction sale, Sankata Prasad had filed objection under Section 281 of U.P.Z.A. & L.R. Act read with Rules 285-I and 285-J of U.P.Z.A. & L.R. Rules, inter alia, on the grounds that the share of Sankata Prasad is only 1/4 but auction had illegally been taken place showing his half share (1/2) in the property in question. The objection filed by Sankata Prasad was rejected by order dated 23.9.1975 passed by Commissioner, Allahabad Division, Allahabad on the basis of the report of Lekhpal and other documents, showing the ownership of the Sankata Prasad to the extent of half share (1/2) in the property in question, therefore, auction sale dated 25.7.1974 was held valid with respect to his half share. Having been aggrieved against the order dated 23.9.1975, Sankata Prasad had preferred revision being Revision No. 106 of 1975-76/Fatehpur before the Board of Revenue, which was also dismissed vide order dated 30.9.1986. After the death of Sankata Prasad, his sons (the present petitioners) have filed highly belated restoration application dated 3.7.2019, which was rejected being time barred vide order dated 17.8.2021 passed by Board of Revenue, which is under challenged in the present writ petition.
It is submitted by counsel for the petitioners that more than the valid share of Sankata Prasad had been put to auction sale, but the same has illegally been ignored by the court below and unfortunately, restoration application, filed on behalf of present petitioners was rejected on the ground of latches. After the death of Sankata Prasad on 4.11.2018, while the contesting respondent has tried to sell the property in question, petitioners came to know about the entire facts. It is further submitted that the petitioners could not know the previous proceeding, therefore, they could not file the restoration application within time. Orders passed by the Board of Revenue are illegal and suffers from infirmity and irregularity, therefore, these orders should be quashed and one opportunity should be given to the petitioners to defend their case.
Per contra, learned counsel appearing on behalf of respondent no.5 (auction purchasers) contended that the orders dated 23.9.1975 and 30.9.1986 were passed in the presence of Sankata Prasad (father of the petitioners). It is evident from the perusal of the aforesaid orders, which are annexed as annexure-3 and 5 respectively to the writ petition, that the auction sale has already attained finality in the year 1974 and after such a belated stage there is no justification for challenging said auction proceedings. It is further contended that since 1974, respondent no.5 is in the possession over the property in question and all rights pertains to the subject matter of auction sale, are vested with him. No sufficient ground has been assigned by the petitioners in filing the restoration application at a belated stage. The impugned orders passed by Board of Revenue and Commissioner, Allahabad Division, Allahabad requires no interference by this Court and the present writ petition is liable to be dismissed with cost.
Having considered the rival submissions advanced by learned counsel for the parties and pleading on record, it is a admitted position to both the parties that auction proceeding took place for realization of the loan amount, as a land revenue, and the property of Sanakata Prasad was put to auction sale on 25.7.1974. So far as the share of the Sankata Prasad in the subject matter of auction proceeding is concerned, Commissioner and the Board of Revenue, vide their orders dated 23.9.1975 and 20.9.1986 respectively, have recorded concurrent finding that the Sankata Prasad was entitled for half share in the property in question. Finding of facts given by them was supported by the report of the Collector and the Lekhpal. In the sale proclamation half (½) share of Sankata Prasad was stipulated. The Board of Revenue has also emphasized one another aspects of the matter that the other co-sharers in the property in question did not come forward against the auction sale claiming their right and title over the subject matter of auction sale, who may have affected due to auction of property more than the valid share of Sankata Prasad as stated by him. There is nothing on record to show that any other co-sharer of the subject matter of the auction proceeding came forward to contest the case claiming his right/title over the property in question. As per the case of the petitioners, their father was alive from 30.9.1986 to 4.11.2018, but during these long period, he had never made any endeavour to challenge the order dated 30.9.1986 in his life time. This Court note with utmost surprise how affected person (Sankata Prasad) had shown his ignorance when orders passed against him came to this serious and dangerous consequence prejudicing his right and title over the property in question. Prima facie, it appears that after the death of Sankata Prasad (father of present petitioners), dishonesty prevailed in their mind and they deliberately moved a restoration application dated 3.7.2019 at a belated stage on very flimsy grounds. Auction sale dated 25.7.1974 has already attained finality and, at this juncture, there is no justification to interfere in the aforesaid auction proceeding, after such a long time. No sufficient and justifiable ground has been offered to explain such inordinate delay in filing the restoration application at the behest of the petitioners, who are claiming their right/title over the property in question being sons of Sanakata Prasad. On the face of it restoration application appears to be misconceived and devoid of merits.
Perusal of the record reveals that there is a gross negligence, recklessness and deliberate inaction at the part of the petitioners who have filed the restoration application at a very belated stage, without sufficiently explaining the inordinate delay, challenging the order dated 30.9.1986 coupled with the validity of the auction proceeding which took place in the year 1974. The highly belated restoration application is nothing but abuse of process of law. It is a sham, illusory and inspired by nefarious and vexatious designs which should be throttled at the threshold.
Hon'ble Supreme Court in the case of Majji Sannemma @ Sanyasirao Vs. Reddy Sridevi & Ors. in Civil Appeal No. 7696 of 2021 decided on 16.12.2021, reported in 2021 SCC Online SC 1260, has expounded that adopting a liberal approach and deciding the delay condonation application does not give a jurisdiction to extend period of limitation on the ground of equity. The relevant paragraph 7, 7.1, 7.2, 7.3, 7.4 and 7.5 of the aforesaid judgment is quoted hereinbelow:
"7. At this stage, a few decisions of this Court on delay in filing the appeal are referred to and considered as under:-
7.1 In the case of Ramlal, Motilal and Chhotelal (supra), it is observed and held as under: In construing s. 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1890) J.L.R. 13 Mad. 269, "s. 5 gives the Court 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 bona fide is imputable to the appellant."
7.2 In the case of P.K. Ramachandran (supra), while refusing to condone the delay of 565 days, it is observed that in the absence of reasonable, satisfactory or even appropriate explanation for seeking condonation of delay, the same is not to be condoned lightly. It is further observed that the law of limitation may harshly affect 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. It is further observed that while exercising discretion for condoning the delay, the court has to exercise discretion judiciously.
7.3 In the case of Pundlik Jalam Patil (supra), it is observed as under: "The laws of limitation are founded on public policy. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. The principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression. The object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."
7.4 In the case of Basawaraj (supra), it is observed and held by this Court that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case. It is further observed that the expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party. It is further observed that even though limitation may harshly affect rights of a party but it has to be applied with all its rigour when prescribed by statute. It is further observed that in case a party has acted with negligence, lack of bona fides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions. It is observed that each application for condonation of delay has to be decided within the framework laid down by this Court. It is further observed that if courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to legislature.
7.5 In the case of Pundlik Jalam Patil (supra), it is observed by this Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and "do not slumber over their rights"."
Having regard to the facts and circumstances of the present case and dictum of Hon'ble Apex Court, in the conspectus as above, I am of the view that petitioners have not come with clean hands before this Court. A clear cut recklessness and gross negligence is made out at their part in adopting the legal recourse against the orders dated 30.9.1986 and 23.9.1975. Even, the original affected person, who was alive at the relevant time and died in the year 2018, had never made any endeavour to challenge the said order and kept silent accepting the order passed by the Board of Revenue and the learned Commissioner.
Resultantly, for the reason stated above, there is no force in the instant writ petition. I do not find any substance in the submissions advanced by counsel for the petitioners assailing the impugned orders. The Board of Revenue has rightly rejected the restoration application of the petitioners on the ground of latches, which was filed without assigning any reliable and cogent reason for inordinate delay.
As such, present writ petition, being misconceived and devoid of merits, is dismissed. No order as to costs.
Order Date :- 22.7.2022 CS/-
(Dinesh Pathak,J.)