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2010 DIGILAW 486 (MP)

Pyarelal v. State of M. P.

2010-04-28

PIYUSH MATHUR

body2010
Judgment ( 1. ) The Plaintiff-Petitioner has challenged in this Revision Petition an Order dated passed by the Additional District Judge, Gwalior, in Civil Appeal No. 21/05 on Date 30th June, 2006,whereby an application preferred by the State of Madhya Pradesh under Section 5 of the Limitation Act has been allowed and the appeal of the State Government has been entertained for its hearing against the judgment and Decree passed ex-parte by the Trial Court against the State Government on Date 13.7.1993 in Civil Suit No. 282/1992. ( 2. ) The Plaintiff Dataram and Pyarelal had filed a Civil Suit No. 282-A/92 seeking declaration of title and grant of permanent injunction in relation to land situated at Survey Number 853 having an area of 1 Bigha 15 Biswa and Survey Number 854 having an area of 6 Bigha 1 Biswa situated at Village Khureri, Tehsil and District Gwalior, on the ground that they are the Landless Agricultural Labourers, who are cultivating the suit land prior to Date 2.10.1984 and have acquired the Bhumiswami rights in terms of the provisions contained in Madhya Pradesh Krishi Prayojan Ke Liye Upyog Ki Ja Rahi Dakhal Rahit Bhumi Par Bhumi Swami Adhikaron Ka Pradan Kiya Jana (Vishesh Upbandh) Adhiniyam, 1984 (hereinafter referred to as "the Adhiniyam"). ( 3. ) The State of Madhya Pradesh was served as a Defendant in the Suit, but remained absent after service of summons, therefore, the Court passed an Order on Date 1.3.1990 to proceed ex parte against the State Government and after recording the evidence of the Plaintiffs, the trial Court had decreed the Suit on date 13.7.1993 by declaring the Plaintiffs to be the Bhumiswami of the suit land. The State Government preferred a First Appeal on date 26.9.2005 under Section 96 of the Code of Civil Procedure against the judgment and decree dated 13.7.1993 alongwith an Application under Section 5 of the Limitation, wherein it was demonstrated that the State Officials were not having the knowledge of passing of the decree and claimed that when the plaintiffs applied for mutation of their names on date 26.8.2005, the Government Officials, could get the knowledge of the Civil Courts decree and after obtaining the Certified Copy of the judgment and decree on date 20.9.2005, the First Appeal Could be filed. ( 4. ( 4. ) The plaintiffs objected to the application seeking condonation of delay, before the First Appellate Court, on several grounds that the mutation of the names was carried out by Tehsildar in the year 1994, whereafter, State of Madhya Pradesh had preferred an appeal before the Sub-Divisional Officer (Revenue), which was allowed by the Sub-Divisional Officer and the Order of mutation passed in favour of the Plaintiffs was set aside, whereafter a Second Appeal of the Plaintiffs was dismissed, however, a Revision preferred by the Plaintiffs before the Board of Revenue succeeded on date 7.9.2001, whereby the order of Tahsildar was restored and consequently the mutation carried out in the Revenue Records in the Year 1994 was found to be correctly carried out by the Board of Revenue. On the strength of this mutation litigation, the Plaintiffs had demonstrated before the First Appellate Court that the ground of seeking condonation of delay by the State Government, is contrary to record, however, the State Officials filed another Application seeking condonation of delay whereby the amended grounds were raised for seeking condonation of delay that the Collector, Gwalior, was not aware of the passing of the decree although pendency of the mutation litigation remained one of the ground, on the strength of which, the delay was sought to be condoned. ( 5. ) The First Appellate Court while dealing with the application preferred under Section 5 of the Limitation Act prima- facie found that the entire land belong to the State Government and there exist sufficient reason to condone the delay, in view of the application being preferred with all bonafides, therefore the Appellate Court has allowed the application, by imposing cost of Rs. 500/- on the State Government. This Order passed by the Additional District Judge in Civil Appeal No. 21/2005 on date 30.6.2006 is challenged before this Court by the Petitioner-Plaintiff. ( 6. ) I have heard Shri U.K. Jain and Shri A.K. Jain, learned counsel for the Petitioner and Shri Pravin Newaskar, learned Deputy Government Advocate for the State of Madhya Pradesh/respondent No. 1 and perused the impugned order. ( 7. ( 6. ) I have heard Shri U.K. Jain and Shri A.K. Jain, learned counsel for the Petitioner and Shri Pravin Newaskar, learned Deputy Government Advocate for the State of Madhya Pradesh/respondent No. 1 and perused the impugned order. ( 7. ) Shri U.K. Jain learned counsel for the Petitioner submits that the defendant was declared ex-parte on date 1.3.2009, whereafter the Suit was decreed on date 13.7.1993 and after a lapse of 12 years, the First Appeal was filed on date 26.9.2005 alongwith an application under Section 5 of the Limitation Act on such grounds, which were not correct as the State Officials were aware of the mutation of the names of the Plaintiffs in the Revenue Records right from year 1994 and since the Mutation Litigation continued till 2001, when the Board of Revenue passed the Order on date 7.9.2001, it could not be said that the State Officials were unware of the proceedings. He submits that the present case is an illustration of the absolute lethargy and negligence on the part of the State Officials in not taking pains for filing an appeal for a long period of 12 years, which deserves condemnation and not condonation at the hands of this Court, Shri Jain submits that since the State Officials have raised such grounds, which were found to be false from the perusal of the record, therefore no liberal attitude should be adopted while considering the merits of the matter. Shri Jain also relied upon the Judgment 2000 (1) MPWN 113=(2001) 1 MP 113 Shakuntala (Smt.) v. Narayan Gundoji Chavan, where this Court has disapproved the condonation of delay of 191 days. ( 8. ) Shri Pravin Newaskar, learned Deputy Government Advocate submits that the Plaintiffs have encroached upon the valuable Government land and have set up their false claim on Survey Numbers 853 and 854, which are situated in the Municipal Area of Gwalior City, by describing themselves to be the landless Agricultural Labourers and by securing a report of service of summons upon the State Officials, a deliberate attempt to obtain an Ex-parte Decree was made, to the detriment of the interest of the State, which would also cause great loss to the public interest. He further submits that the provisions of the Adhiniyam of 1994 do not sub-serve the cause of the Plaintiffs, as they could not be declared Bhumiswami even while pressing the provisions of the Adhiniyam into service, for securing declaration of title and permanent injunction against the State Government and on all these grounds Shri Newaskar submits that the State Government has an arguable case before the First Appellate Court and in case the right of the State Government is curtailed, then not only the public interest, but also the valuable piece of land, shall be mis-utilized in the hands of the Plaintiffs under the garb of the Ex-parte Decree. Lastly he submits that the error on the part of the State Officials may be pardoned for securing larger public interest with a view to safeguard the public properties. Shri Newaskar has also drawn my attention to a judgment passed by this Court in Second Appeal No. 166/07 on Date 12.9.2008 in the case of State of Madhya Pradesh and another v. Ganga Prasad Sharma and others to demonstrate that the appeal was barred by 820 days and this Court has taken a view that even when the State Government could not properly explain the delay, on day-to-day basis, however while considering the larger public interest the refusal to grant condonation of delay would amount to grave miscarriage of justice. He further submits that this judgment was assailed before the Supreme Court, but the Special Leave petition was dismissed in limine. ( 9. ) A prima facie perusal of the pleadings of the Plaintiffs demonstrate that the Plaintiffs had set up their case for seeking declaration of title on the Government land, on the strength of a special enactment, which provide for conferral of Bhumiswami rights of Landless Agricultural Labourers, but the same contains a variety of requirement for bringing the case into the Specified Category and there exist instances when the litigants had succeeded or failed in establishing their possession prior to the cut off date 2.10.1984, therefore it could not be said that merely on the basis of some entry in the Revenue Records, the Plaintiffs could make out a case on an ex-parte basis and had the State Government had been participating or contesting the suit, the outcome could be different. ( 10. ( 10. ) The Law of Limitation makes no distinction amongst the State and the Citizens of this Country, therefore this Court has no hesitation to observe that the State has to approach the Court well within the prescribed period of limitation, however when the "State" as an abstract entity prays for condonation of delay, the requirement of strict proof sometimes leads to miscarriage of justice. This thought has been succinctly crystallized by the Supreme Court in its judgments reported as (1996) 10 SCC 634 Special Tehsildar, Land Acquisition v. K.V. Ayisumma, wherein the Supreme Court has stated that the approach of the Court should be pragmatic but not pedantic. The relevant paragraph of this judgment is quoted herein below: "2. It is now settled law that when the delay was occasioned at the behest of the Government, it would be very difficult to explain the day-today delay. The transaction of the business of the Government was being done leisurely by officers who had no or evince no personal interest at different levels. No one takes personal responsibility in processing the matters expeditiously. As a fact at several stages, they take their own time to reach a decision. Even in spite of pointing at the delay, they do not take expeditious action for ultimate decisions in filing the appeal. This case is one of such instance. It is true that Section 5 of the Limitation Act envisages explanation of the delay to the satisfaction of the Court and in matters of Limitation Act made no distinction between the State and the citizen. Nonetheless adoption of strict standard of proof leads to grave miscarriage of public justice. It would result in public mischief by skilful management of delay in the process of filing the appeal. The approach of the Court should be pragmatic but not pedantic. Under those circumstances, the Subordinate judge has rightly adopted correct approach and had condoned the delay without insisting upon explaining every days delay in filing the review application in the light of the law laid down by this Court. The High Court was not right in setting aside the order. Delay was rightly condoned." ( 11. Under those circumstances, the Subordinate judge has rightly adopted correct approach and had condoned the delay without insisting upon explaining every days delay in filing the review application in the light of the law laid down by this Court. The High Court was not right in setting aside the order. Delay was rightly condoned." ( 11. ) There had been cases where the Supreme Court had liberally construed the issue of condonation of delay, but there are exceptions when the Supreme Court has refused to condone the delay, even upon finding the public interest to be the paramount consideration while exercising its discretion. In a judgment reported as (2008) 17 SCC 448 Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project, the Supreme Court has observed that the Law of Limitation is same for citizen and the Government and the Limitation Act nowhere provides for a different period to the Government in filing appeals and unless a suggestion about collusion and fraud is made out, it cannot be always found that the condonation sought by the State should be invariably granted. ( 12. ( 12. ) Since a Litigant seeking condondation of delay is always required to establish "sufficient cause", therefore the guidance given by the Supreme Court in its judgment reported as (2008) 14 SCC 582 State (NCT of Delhi) v. Ahmad Jaan would be profitable to mention, where the Court propounds that what counts is not the length of the delay, but the sufficiency of the cause, and shortness of the delay is one of the circumstances to be taken into account, in using the discretion by the Court because the Court has to place itself in the position of the person concerned and to find out as to whether the delay could have resulted from the cause and whether the cause could be treated in the peculiar circumstances of the case, as sufficient, wherein the Court further observe that what constitutes "sufficient cause" could not be laid down by the hard-and-fast Rules and although no special indulgence can be shown to the Government which, in similar circumstances is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels and lastly the Supreme Court ruled that adoption of strict standard of proof sometimes fails to protect public justice and result in public mischief by skillful management of delay caused in the process of filing an appeal. Therefore every Court should remain cautious at the time of deciding an application seeking condonation of delay for ascertaining as to whether the delay Was caused as a result of skillful management of some individuals, with a view to commit a public mischief, for capturing the public property and when the Court feels satisfied then it can ascertain the sufficiency of the cause, by ignoring the length of the delay and condone it, in peculiar circumstances of each case. ( 13. ) This leads to yet another aspect of matter, where the Court has to concentrate on the importance of the question of law involved in a matter, while considering the prayer for grant of condonation of delay because when the State approaches the Court after a long lapse of delay, without there being any important question of law involved in the matter, no fruitful purpose could be served in condoning the delay, if an appeal fails to raise an important question of law. The present appeal is based upon the provisions of the Adhiniyam of 1984 qua the declaration of the Bhumiswami rights in favour of the Plaintiffs as Landless Agricultural Labourers, which certainly involves a legal question of public properties being declared as property of individuals, which certainly require a bye-party decision, howsoever strong or weak, the case of the Plaintiffs and Defendant may prima-facie appear to be existing. Therefore even when there exist no material to find that there was either a fraud played or with the connivance of the State Officials a fraud was committed in causing delay, due to deliberate negligence or as a result of master-craftsmanship of some employees of Government, but this Court find that a decision on merits could be arrived at only after condoning the delay and hearing the appeal on merits. In a recent judgment, the Supreme Court has imposed exemplary costs on the State Authorities after finding that the public interest and public exchequer was not properly safeguarded by the State Officials with a view to protect unscrupulous litigant. This judgment is reported as (2009) 13 SCC 199 State of Karnataka v. Y. Moideen Kunhi and its relevant paragraphs are quoted herein below: "19. On perusal of the explanation offered it is clear that the officials who were dealing with the matter have either delilberately or without understanding the implications dealt with the matter in a very casual and lethargic manner. It is a matter of concern that in very serious matters action is not taken as required under law and the appeals/petitions are filed after a long lapse of time. It is a common grievance that it is so done to protect unscrupulous litigants at the cost of public interest or public exchequer. The stand is more noticeable where vast tracts of lands or large sums of revenue are involved. 20. Even though the Courts are liberal in dealing with the belated presentation of appeals/applications, yet there is a limit up to which such liberal attitude can be extended. Many matters concerning the State Government and the Central Government are delayed either by the nature of bureaucratic process or by deliberate manipulation of the same by taking advantage of loopholes in the conduct of litigation. Many matters concerning the State Government and the Central Government are delayed either by the nature of bureaucratic process or by deliberate manipulation of the same by taking advantage of loopholes in the conduct of litigation. Several instances have come to the notice of this Court whereas as noted above appeals have been filed where the revenue involved runs to several crores of rupees. It is true that occasionally delay occures which is inexplicable in normal circumstances. 21. The case at hand is a classic example where the circumstances are the same. More than 4000 acres of land are involved out of which, according to the State, nearly 3500 acres constitute forest land. Ultimately, the Court has to protect the public justice. The same cannot be rendered ineffective by skilful management of delay in the process of making challenge to the order which prima facie does not appear to be legally sustainable. 22. The expression "sufficient cause" as appearing in Section 5 of the Limitation Act, 1963 (in short "the Limitation Act") must receive a liberal construction so as to advance substantial justice as was noted by this Court in G. Ramegowda v. Special Land Acquisition Officer Paras 16- 17 of the judgment reads as follows: (SCC pp. 148-49). "16. The law of limitation is, no doubt, the same for a private citizen as for govermental authorities, Government like any other litigant must take responsibility for the acts of omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. 17. Therefore, in assessing what, in a particular case, constitutes sufficient cause for purpose of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have a little play at the joints. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have a little play at the joints. Due recognition of these limitations on governmental functioning-of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps be unfair and unrealistic to put Government and private parties on the same footing in all respect in such matters. Implicit in the very nature of governmental functioning is procedural delay incidental to the decision making process. In the opinion of the High Court, the conduct of the law officers of the Government placed the Government in a predicament and that it was one of those cases where the mala fides of the officers should not be imputed to Government. It relied upon and trusted its law officers. Lindely, M.R. In National Bank of Wales Ltd. In re observed, though in a different context: (Chp. 673) ......Business cannot be carried on upon principles of distrust. Men in responsible positions must be trusted by those above them, as well as by those below them, until there is reason to distrust them." 23. Keeping in view the importance of question of law which are involved we are inclined to condone the delay subject to payment of exemplary costs which we fix at rupees ten lakhs to be paid within a period of eight weeks to the respondents. The delay is condoned subject to the payment of the aforesaid amount as costs. After making the payment the receipt thereof shall be filed before this Court along with an affidavit. Only after the payment is made the special leave petitions shall be listed for admission. We make it clear that we have not expressed any opinion on the merits of the case." ( 14. After making the payment the receipt thereof shall be filed before this Court along with an affidavit. Only after the payment is made the special leave petitions shall be listed for admission. We make it clear that we have not expressed any opinion on the merits of the case." ( 14. ) Therefore from a perusal of the factual and legal aspect of the matter, this Court find that the First Appellate Court has not committed any jurisdictional error, muchless an error of fact or law in allowing the application of the State Government preferred under Section 5 of the Indian Limitation Act, even though the State Government and its Officials may have improperly conducted the matter before the Court below, as this Court find that the larger public interest as also the interest of both the litigating parties could well be subserved by condoning the delay, caused in preferring the First Appeal. Consequently, this Revision Petition preferred on behalf of the Plaintiff is dismissed. The First Appellate Court is directed to decide the Appeal on its merits.