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2017 DIGILAW 437 (UTT)

SANJEEDA v. DEPUTY DIRECTOR OF CONSOLIDATION

2017-08-17

SHARAD KUMAR SHARMA

body2017
JUDGMENT Hon'ble Sharad Kumar Sharma, J. (Oral) Under Section 53-B of the U.P. Consolidation of Holdings Act, 1953, the provisions of Section 5 of the Limitation Act, 1963 has been made applicable in all the proceedings which are contemplated under the Act which is inclusive of applications, appeals, revisions and other proceedings. Section 53-B of the U.P. Consolidation of Holdings Act, 1953 reads as under:- “[53-B. Limitation. – The provisions of Section 5 of the Limitation Act, 1963, shall apply to the applications, appeals, revisions and other proceedings under this Act or the rules made thereunder.]" 2. The challenge given by the petitioner to the order dated 11.02.2000 is an order passed by the Deputy Director of Consolidation in a reference proceedings being Ref. No. 73/99- 2000 State vs. Jameel & others whereby under sub Section (3) of Section 48 a reference has been decided by the order dated 24.02.2005, which was sought to be recalled by the restoration application being Application No. 23 of 2004-05 has been rejected. 3. The contention of the learned counsel for the petitioner is that at the stage of reference under sub Section (3) of Section 48 when the proceedings were pending consideration, the petitioner purchased the land by virtue of a sale deed dated 27.05.1999 from its predecessor owner Smt. Asgari W/o Shri Basheer. 4. The contention of the learned counsel for the petitioner is that on the basis of the reference order as passed in reference Case No. 73/1999-2000 State vs. Jameel & others on11.02.2000, the petitioner would be adversely affected making changes in the khasras purchased by him and that too without hearing him. The learned counsel for the petitioner placed reliance on sub Section (3) of Section 48 of the Consolidation of Holdings Act which reads as under:- “[48. Revision and reference. - ………. (3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1).]" 5. The contention of the learned counsel for the petitioner is that when the Deputy Director of Consolidation exercises a power of reference, it is the duty casted on the reference Court to hear “parties concerned". The contention of the learned counsel for the petitioner is that when the Deputy Director of Consolidation exercises a power of reference, it is the duty casted on the reference Court to hear “parties concerned". His contention is that when the legislature under sub Section (3) of Section 48 has used the word ‘concerned' then it is the duty casted on the Courtto ensure that the parties likely to be effected on a probable order being passed are noticed. His case is that prior to passing the order dated 11.02.2000, no notice whatsoever was issued to him despite the fact under the strength of sale deed dated 27.05.1999 he already stood recorded. 6. Thus he contended that the reference order was bad. Assailing the said order dated 11.02.2000, he filed a Restoration Application on 28.06.2004 which was registered as restoration application No. 23/2004-05 Sanjeeda Vs. State. His application came up for consideration before Reference Court on 24.02.2005 and the same has been rejected. The rejection of the restoration application of the petitioner was on the ground that the application for restoration was not supported by an application for condonation of delay. 7. Under Section 5 of the Limitation Act which reads as under :- “5 Extension of prescribed period in certain cases. —Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908(5 of 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. Explanation.— The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section." 8. Under consolidation under Section 5 it has been made applicable by Section 53-B of the U.P. Consolidation of Holdings Act, 1953, apart from the fact that though the judgmentlaid down that a lenient view is to be adopted while considering the application for condonation of delay but in the instant case, the issue is as to whether a statute which contemplates the applicability of Limitation Act and Section 5 is made applicable as to whether an independent application for condonation of delay is required or not? Because here no independent application, seeking condonation of delay was filed. 9. This Court feels that since the application of Limitation Act and as per the provisions contained under Section 5 for considering the application for condonation of delay or anissue of delay may be at times it is between the applicant and the Court, dealing the question of delay has to be satisfied for delayed initiation of proceedings. Once Section 5 uses the word ‘sufficient cause', it means a cause to be deciphered in an application, because cause could only be attributed by pleading and not by inference of the parties before the Court. 10. The term ‘cause' as it has been defined in Black's Law Dictionary, it reads as under:- “It has been said that an act which in no way contributed to the result in question cannot be a cause of it; but this, of course, does not mean that an event which might have happened in the same way though the defendant's act or omission had not occurred, is not a result of it. The question is not what would have happened, but what did happen." 11. In its literal meaning ‘cause' means a reason and if a reason is contemplated under law to explain a delay, then it has to be made by virtue of a specific application and not by implication of the averments made during the course of the arguments and that is why the term ‘sufficient cause' has been used under Section 5 of Limitation Act. 12. Cause here would always mean a given fact for initiation of a proceedings on the legal side and that is why the Black's Law Dictionary, further, while dealing with the cause of action has held that it is a reason which gives the party to a litigation a cause to maintain an action: “What is a cause of action? Jurists have found it difficult to give a proper definition. It may be defined generally to be asituation or state of facts that entitles a party to maintain an action in a judicial tribunal. Jurists have found it difficult to give a proper definition. It may be defined generally to be asituation or state of facts that entitles a party to maintain an action in a judicial tribunal. This state of facts may be – (a) a primary right of the plaintiff actually violated by the defendant; or (b) the threatened violation of such right, which violation the plaintiff is entitled to restrain or prevent, as incase of actions or suits for injunction; or (c) it may be that there are doubts as to some duty or right, or the right beclouded by some apparent adverse right or claim, which the plaintiff is entitled to have cleared up, that he may safely perform his duty, or enjoy his property." Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 170 (2nd ed. 1899). 13. Thus, in the absence of an application, seeking condonation of delay, the delay itself could not have been condoned by implication. 14. The justification behind this is that until and unless a party seeking a condonation of delay assigns a cause for delay, the applicability of Section 5 which in the instant case has been made applicable under Section 53-B becomes nonest. 15. Thus, admittedly, the petitioner has not filed any delay condonation along with the restoration application submitted by the learned counsel for the petitioner before the court below seeking recall of order dated 11.02.2000 passed in the proceedings under sub Section 3 of Section 48 of U.P. Consolidation of Holdings Act, 1953. And as it was not supported by the delay condonation application, it would tantamount that there was no cause explained by the learned counsel for the petitioner before the Court for getting the delay condoned and thus the Court had no option except to reject the restoration application. Since the reason for delay was not explained/nor cause was given or explained by filing an independent application which is mandatory once the Limitation Act has been made applicable by virtue of Section 53-B of the Consolidation of Holdings Act, which is a special statute. 16. Hence, in these circumstances, Deputy Director, Consolidation, who was exercising powers vested in him under the statute, could not have condone the delay without the same being explained by a separate application. 17. 16. Hence, in these circumstances, Deputy Director, Consolidation, who was exercising powers vested in him under the statute, could not have condone the delay without the same being explained by a separate application. 17. Thus this Court finds that there is no apparent error in the order passed by the court below rejecting the restoration application of the petitioner, thus the writ petition fails and is dismissed. 18. No order as to costs.