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2014 DIGILAW 426 (ALL)

Ghanshyam Jaiswal v. State of U. P. and Others

2014-02-07

RAN VIJAI SINGH

body2014
Ran Vijai Singh,J. Heard Sri Syed Wajid Ali, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents and Sri Tariq Maqbool Khan, learned counsel for the Gaon Sabha. 2. By means of this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 31.1.2013 passed by the Additional District Magistrate (City), Gorakhpur in case no. 46/Ka (Ghanshyam Vs. Land Management Committee and Others) and order dated 22.1.2014 passed by the Additional Commissioner (Judicial), Gorakhpur Division, Gorakhpur in revision no. 99/192/G - 2013 (Ghanshyam Vs. Jawahir). 3. While assailing the impugned orders, learned counsel for the petitioner contends that the order dated 18.9.2007 was passed after due notice to the other side and in spite of the notice, they did not appear, therefore, on their instance, the order dated 18.9.2007 could not be set aside. In his further submission, the application seeking recall of the order dated 18.9.2007 was time-barred and there was no explanation to condone the delay, even then, delay has been condoned. It is further submitted that the revisional court too has not gone into this aspect of the matter and dismissed the revision on the ground that it is against an interlocutory order. 4. The facts giving rise to this case are that it appears, on the land in dispute, a lease was granted for housing site in favour of respondent nos. 5 and 6 by order dated 1.10.1986. The petitioner herein has filed an application under Rule 115-P of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 seeking cancellation of the aforesaid lease, which was numbered as case no. 46/Ka (Ghanshyam Vs. Land Management Committee and Others). The aforesaid application was allowed ex parte by the judgment and order dated 18.9.2007. The other side has filed an application seeking recall of the order dated 18.9.2007 passed by the Additional District Magistrate (City) (in short 'A.D.M. City'). The application was barred by time, therefore, an application was also filed for condonation of delay. The A.D.M.City, vide order dated 31.1.2013, has condoned the delay and set aside the order dated 18.9.2007 with the direction to hear the matter again afresh. 5. Aggrieved by that order, the present petitioner has filed revision no. 99/192/G - 2013 (Ghanshyam Vs. Jawahir). The application was barred by time, therefore, an application was also filed for condonation of delay. The A.D.M.City, vide order dated 31.1.2013, has condoned the delay and set aside the order dated 18.9.2007 with the direction to hear the matter again afresh. 5. Aggrieved by that order, the present petitioner has filed revision no. 99/192/G - 2013 (Ghanshyam Vs. Jawahir). The said revision was dismissed by the Additional Commissioner vide order dated 22.1.2014, holding it to be not maintainable against an interlocutory order. Learned counsel for the petitioner contends that once the notice was served on the other side and he did not appear, neither there was any occasion to condone the delay nor to set aside the order dated 18.9.2007. 6. I have heard learned counsel for the parties and perused the impugned orders. It is apparent that the order dated 18.9.2007 was passed ex parte as against the respondent nos. 5 and 6. The Additional District Magistrate has condoned the delay and recalled/set aside the order dated 18.9.2007, meaning thereby, the matter has to be heard afresh and the parties have every opportunity to plead their case before the court concerned. 7. Learned counsel for the petitioner contends that the court below has erred in condoning the delay in filing the recall application. The Apex Court in the case of State of Bihar and others Vs. Kameshwar Singh and others reported in JT 2000 (5) 389, after considering various cases of the Apex Court on condonation of delay application, has held as under: "Para 13................. "It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court." 8. In view of the observation made by the Apex Court, I do not find any illegality in the impugned orders as without hearing the other side, substantial justice cannot be done, which is the main object of the establishment of the courts. 9. The writ petition is dismissed. However, considering the submissions of learned counsel for the petitioner that during the pendency of the revision, there was an order for staying the operation of the order dated 18.9.2007, which has continued during the pendency of the revision, it is provided that pending disposal of the application of the petitioner seeking cancellation of the lease, the parties shall maintain status quo. The parties are also restrained from creating any third party right or changing the nature of the land in dispute in the meantime. ____________