Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 1064 (PAT)

Dhokal Yadav v. State of Bihar

2013-08-30

BIRENDRA PRASAD VERMA

body2013
BIRENDRA PRASAD VERMA, J.:–The petitioners have filed the present writ petition under Articles 226 and 227 of the Constitution of India assailing the validity and correctness of order dated 30.8.1991 (Annexure-7) passed in Consolidation Revision case No. 1481 of 1988 by the respondent Joint Director of Consolidation, (Headquarter.), Bihar, Patna, whereby while setting aside the orders passed by the respondent Consolidation Officer, Belhar, Bhagalpur as also the respondent Assistant Director of Consolidation, Bhagalpur, claim of the petitioners with respect to the lands under dispute, bearing khata No. 89, khesra No. 2326, area 81 decimals, has been rejected and that of contesting respondent No.5 has been allowed. 2. During the pendency of the main writ petition, the contesting respondent No. 5 Dropad Pandti died on 2.5.2005 leaving behind his son Laxmi Pandit as his only heir and legal representative. Admittedly, deceased respondent No. 5 is the only contesting respondent in whose favour the impugned revisional order was passed and his claim over the lands under dispute has been accepted by the respondent Joint Director of consolidation (Headquarter), Bihar, Patna. 3. Though, the death of contesting respondent No. 5 had taken place in the year 2005, yet steps for substitution of his heir and legal representative were not taken by the petitioners for more than 7 years. However, on 5.11.2012 Interlocutor Application No. 7430 of 2012 was filed on behalf of the petitioners seeking substitution of heir and legal representative of deceased respondent No.5, besides seeking substitution of the heirs and legal representatives of some of the petitioners, who had also died during the pendency of the main writ petition. 4. Aforesaid Interlocutory Application No. 7430 of 2012 was placed for consideration before a Bench of this court on 3.4.2013 whereafter notice was ordered to be issued to the proposed heir and legal representative of deceased respondent No.5. On receipt of the aforesaid notice, Laxmi Pandit @ Laxmi Kant Pandit, the son of the deceased respondent No.5 has entered appearance through his lawyer and filed a rejoinder affidavit opposing the prayer for substitution made on behalf of the petitioners by placing reliance on a judgment of the Hon’ble Apex Court in the case of Puran Sigh Vs. State of Punjab [ (1996) 2 SCC 205 ], as also an unreported judgment/order dated 16.7.2013 passed by this Court in C.W.J.C.No. 2864 of 1984 [Sukh Bilas Roy & Ors. Vs. State of Punjab [ (1996) 2 SCC 205 ], as also an unreported judgment/order dated 16.7.2013 passed by this Court in C.W.J.C.No. 2864 of 1984 [Sukh Bilas Roy & Ors. Vs. The State of Bihar & Ors]. 5. Learned counsel appearing on behalf of the petitioners submitted that since the proposed heir of deceased respondent No.5 has already entered appearance through his lawyer and since he has filed a detailed counter affidavit, therefore, the main writ petition may be decided on merit and prayer for substitution made on behalf of the petitioners with respect to the deceased respondent No.5 be allowed. 6. Learned counsel appearing on behalf of the proposed heir and legal representative of deceased respondent No. 5, on the other hand, contended that since the writ petition itself has abated on account of non-substitution of the heir and legal representative of deceased respondent No. 5 within a reasonable period of time of 3 years, as fixed by this Court in the case of Sukh Bilas Roy and Ors. Vs. The State of Bihar and Ors. (supra), and the impugned revisional order passed by the respondent Joint Director of Consolidation has attained its finality, therefore, he cannot be compelled to contest this litigation and the prayer for substitution made on behalf of the petitioners cannot be allowed at this belated stage after such a long delay of more than 7 years. 7. The issue raised here in the present proceeding with respect to the abatement of the writ petition on account of non-substitution of the heir and legal representative of the deceased respondent No.5 is no longer a res integra. This issue came up for consideration before the Hon’ble Apex Court in the case of Puran Singh Vs. State of Punjab (supra) and the Hon’ble Apex Court, after considering all the aspects of the matter, laid down the law in paragraph 12 of its judgment which is reproduced herein below:– “As such even if it is held that Order 22 of the Code is not applicable to writ proceedings or writ appeals, it does not mean that the petitioner or the appellant in such writ petition or appeal can ignore the death of the respondent if the right to pursue remedy even after death of the respondent survives. After the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such respondent within a reasonable time. For purpose of holding as to what shall be a reasonable time, the High Court may take note of the period prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased defendant or the respondent. However, there is no question of automatic abatement of the writ proceedings. Even if an application is filed beyond 90 days of the death of such respondent, the Court can take into consideration the facts and circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal representative. This power has to be exercised on well-known and settled principles in respect of exercise of discretionary power by the High Court. If the High Court is satisfied that delay, if any, in substituting the heirs of the deceased respondent was not intentional, and sufficient cause has been shown for not taking the steps earlier, the High Court can substitute the legal representative and proceed with the hearing of the writ petition or the writ appeal, as the case may be. At the same time the High Court has to be conscious that after lapse of time a valuable right accrues to the legal representative of the deceased respondent and he should not be compelled to contest a claim which due to the inaction of the petitioner or the appellant has become final.” (Emphasis added by me) 8. Similar matter came up for consideration before me in the case of Sukh Bilas Roy and Ors. Vs. The State of Bihar and Ors. (supra). In the aforesaid judgment/order, I have noticed that in Puran Singh Vs. State of Punjab (supra) the writ petition was dismissed by the learned Single Judge of Punjab and Haryana High Court on account of not taking steps for substitution of one of the contesting respondents for a period of 3 years 3 months. Letters Patent Appeal filed against the said order was also dismissed by Division Bench of Punjab and Haryana High Court. When the matter was taken to the Hon’ble Supreme Court, the orders passed by the Punjab and Haryana High Court were affirmed and the law has been laid down, which has already been reproduced above. 9. Letters Patent Appeal filed against the said order was also dismissed by Division Bench of Punjab and Haryana High Court. When the matter was taken to the Hon’ble Supreme Court, the orders passed by the Punjab and Haryana High Court were affirmed and the law has been laid down, which has already been reproduced above. 9. After taking into consideration various aspects including the principles enunciated by the Hon’ble Apex Court in the case of Puran Sigh Vs. State of Punjab (supra) as also a Division Bench judgment of our own High Court in the case of Harakh Nath Singh Vs. Lodha Singh [ 1978 BBCJ 481 ], I have come to a conclusion in aforesaid case of Sukh Bilas Roy & ors. Vs. State of Bihar & Ors (supra) that if steps are not taken within a maximum period of 3 years, then the prayer for substitution cannot be allowed. The legal rights accrued to the successful respondents or the heirs and legal representatives of the deceased respondent cannot be taken away mechanically. In my considered opinion a period of 3 years is a reasonable period of time for taking steps for substitution. I am tempted to reproduce paragraphs 13 and 14 of the judgment/order in the case of Sukh Bilas Roy & ors. Vs. The State of Bihar & Ors (supra), which are as follows:– “13. A question arises as to what would be the reasonable time for taking steps for substitution. Article 120 of the Limitation Act, 1963 provides a period of 90 days for substitution of the legal representatives under the Code of Civil Procedure. It is true that the provisions of the Code of Civil Procedure cannot be strictly applied in a proceeding under article 226 of the Constitution of India, in view of the provisions contained in Section-141-Explanation of the C.P.C., but benefits of the principles can be taken and analogy of the provisions of the C.P.C. can be drawn in a proceeding under article 226 of the Constitution of India. 14. Coming once again to the provisions of the Limitation Act, this Court finds that under Article 137 a period of 3 years has been prescribed for filing any application for which no period of limitation has been provided. The period of 3 years is a long period. 14. Coming once again to the provisions of the Limitation Act, this Court finds that under Article 137 a period of 3 years has been prescribed for filing any application for which no period of limitation has been provided. The period of 3 years is a long period. If death of a party takes place, then the petitioner/appellant of writ petition/writ Appeal/L.P.A. or the proposed heirs may not be required to file a substitution petition strictly within a period of 90 days, but he/she is required to take steps for substitution within a reasonable period of time. In the considered opinion of this Court, if the steps are not taken within a maximum period of 3 years, then the prayer for substitution cannot be allowed and the legal rights accrued to the successful respondents or the heirs and legal representatives of a deceased respondent cannot be taken away in a mechanical manner and further they cannot be compelled to contest such proceeding, which has abated due to non-substitution of the heirs and legal representatives of the deceased within a reasonable period of time of 3 years.” 10. Coming back to the present writ petition, admittedly, death of respondent No.5 took place in the year 2005, precisely on 2.5.2005. Respondent No.5 was the only contesting respondent. The petition for substitution was filed for the first time after 7 years on 5.11.2012. Admittedly, the petition for substitution has not been filed within a reasonable period of time of 3 years, as a result thereof the writ petition stood abated, so far it relates to deceased respondent No.5. The order passed by the revisional authority has become final in favour of the proposed heir and legal representative of deceased respondent No. 5 and as such he cannot be compelled to contest the present writ petition, which had already abated. In above view of the matter, this Court is not inclined to consider the claim of the parties on merit. 11. In the given facts of the case, the prayer for substitution, so far it relates to deceased respondent No.5, made in Interlocutory Application No. 7430 of 2012 is rejected. In view of abatement of the writ petition against deceased respondent No.5, on account of non-substitution of his heir and legal representative, the writ petition has become incompetent and it cannot proceed further. 12. In view of abatement of the writ petition against deceased respondent No.5, on account of non-substitution of his heir and legal representative, the writ petition has become incompetent and it cannot proceed further. 12. In the result, the writ petition has to fail and is, accordingly, dismissed. No costs.