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2023 DIGILAW 1361 (ALL)

Yugal Bihari Das v. Board of Revenue, U. P.

2023-05-19

RAJESH SINGH CHAUHAN

body2023
JUDGMENT : RAJESH SINGH CHAUHAN, J. 1. Heard Shri Prabhat Kumar Upadhyay, learned counsel for the petitioner, Shri A.S. Tewari, learned Additional Chief Standing Counsel for the State-respondents and Shri Rakesh Kumar Srivastava, learned counsel for opposite party no. 4. 2. By means of this petition, the petitioner has prayed following main reliefs: “(i) Issue a writ, order or direction in the nature of Certiorari quashing the order dated 18.09.2001 passed by Board of Revenue, U.P. Lucknow in Revision No. 114/ 1993-94 which annexed as Annexure No. 1 to this writ petition. (ii) Issue a writ, order or direction in the nature of Certiorari thereby quashing the order dated 11.08.2022 passed in Review No. 104/ 2005-06 passed by Board of Revenue, U.P. Lucknow which is annexed as Annexure No. 2 to this writ petition. (iii) Issue a writ order or direction in the nature of Certiorari thereby quashing the order dated 16.06.1994 passed in Appeal No. 9/ 44 passed by Assistant Record Officer, Faizabad which is annexed as Annexure No. 3 to this writ petition.” 3. In the present case, the legal question involved is as to whether any application/ suit/ case etc. is filed beyond the period prescribed under the Act without filing any application for condonation of delay, such application etc. may be admitted and decided without adverting to the factum of delay. 4. The law is very clear that if any period is prescribed to file any application etc., the same should have been filed within time prescribed. If in any case such application etc. is filed beyond the period so prescribed, such application etc. should be filed along with an application for condonation of delay. The court concerned should first advert to application for condonation of delay and if the court satisfies that the delay is liable to be condoned, the delay is condoned and the matter is heard on merits but if the court finds that the delay is not liable to be condoned, such application may be rejected at the very beginning and in that case the matter is not heard on merits. The law is also very clear that if any application etc. The law is also very clear that if any application etc. is filed without filing a separate application for condonation of delay but the reason of delay is indicated in such application and the court concerned hears such application and decides the same adverting to the factum of delay and reasons thereof, that order may not be treated as nullity in the eyes of law, if the issue in question is so serious which requires instant intervention of the court. It is not always needed to file a formal application of condonation of delay and if the delay has been explained properly in an application etc. and the court concerned has dealt with such reasons and grounds of delay, the order in question would not be treated as nullity in the eyes of law. But in any case the factum of delay and the reasons and grounds so taken by the applicant, the same must have been dealt with by the authority concerned while passing an order in a case which has been filed after a period so prescribed under the Act. The Hon'ble Apex Court in Sesh Nath Singh and Another vs. Baidyabati Sheoraphuli Co-operative Bank Ltd. and Another, 2021 SC 177, in Para 62, 63, 64 and 102 has observed as under: “62. It is true that a valuable right may accrue to the other party by the law of limitation, which should not lightly be defeated by condoning delay in a routine manner. At the same time, when stakes are high, the explanation should not be rejected by taking a pedantic and hyper technical view of the matter, causing thereby irreparable loss and injury to the party against whom the lis terminates. The courts are required to strike a balance between the legitimate rights and interests of the respective parties. 63. Section 5 of the Limitation Act, 1963 does not speak of any application. The Section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. 63. Section 5 of the Limitation Act, 1963 does not speak of any application. The Section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the Court or Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court/Tribunal within the time prescribed by limitation, there is no bar to exercise by the Court/Tribunal of its discretion to condone delay, in the absence of a formal application. 64. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the Court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section 5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the Court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application. 102. In any case, Section 5 and Section 14 of the Limitation Act are not mutually exclusive. Even in a case where Section 14 does not strictly apply, the principles of Section 14 can be invoked to grant relief to an applicant under Section 5 of the Limitation Act by purposively construing 'sufficient cause'. It is well settled that omission to refer to the correct section of a statute does not vitiate an order. Even in a case where Section 14 does not strictly apply, the principles of Section 14 can be invoked to grant relief to an applicant under Section 5 of the Limitation Act by purposively construing 'sufficient cause'. It is well settled that omission to refer to the correct section of a statute does not vitiate an order. At the cost of repetition it is reiterated that delay can be condoned irrespective of whether there is any formal application, if there are sufficient materials on record disclosing sufficient cause for the delay.” 5. In a full agreement with the aforesaid dictum of Apex Court in Sesh Nath Singh (supra), I am examining the orders under challenge. 6. By means of impugned order dated 16.06.1994 passed by Assistant Record Officer, Faizabad in Case No. 9/44 in an appeal filed under Rule 27(3) of U.P. Land Revenue (Survey and Record Operations) Rules, 1978 (hereinafter referred to as 'Rule, 1978') set aside the order dated 06.02.1993 passed by Survey Naib Tehsildar, Sadar, Faizabad recalling its earlier order dated 18.11.1989 restoring the case in its original number fixing next date seeking objection thereon. The Appellate Authority has held that the Survey Naib Tehsildar concerned has illegally and erroneously recalled its earlier order dated 18.11.1989 against which the restoration application was filed on 26.03.1992 without filing an application for condonation of delay inasmuch as there was inordinate delay in filing such application. The Appellate Court has further held that if any application is filed beyond the period so prescribed, the application for condonation of delay is must. When the order of Appellate Authority dated 16.06.1994 was assailed before the Revisional Authority i.e. Board of Revenue, The Board of Revenue passed an order dated 18.09.2001 in Revision No. 114/1993-94. The Revisional Authority i.e. Board of Revenue has also rejected the revision of the petitioner on the ground that no application for condonation of delay has been filed by the petitioner before the Survey Naib Tehsildar concerned seeking recall of the order dated 18.11.1989 as the restoration application was filed on 26.03.1992, therefore, there is no infirmity or illegality in the order of the Appellate Authority, accordingly, the revision has been rejected. Thereafter the petitioner filed a review before the Board of Revenue. The review bearing no. Thereafter the petitioner filed a review before the Board of Revenue. The review bearing no. 104 of 2005-2006 which has been rejected by the Board of Revenue vide order dated 11.08.2022, holding that there is no infirmity or illegality in the order under review. 7. Shri Rakesh Kumar Srivastava, learned counsel for the private opposite party has stated that even if the application for condonation of delay has not been filed by the petitioner along with restoration application dated 26.03.1992 seeking recall order dated 18.11.1989 but at least the petitioner should have indicated the plausible grounds and reasons as to why he could not file restoration/ recall application well in time and those grounds and reasons should have been considered by the authority concerned while recalling the order dated 18.11.1989 but neither the specific grounds/ reasons have been indicated in the restoration application nor such grounds/ reasons have been considered by the Survey Naib Tehsildar concerned while recalling the order dated 18.11.1989 allowing the restoration application dated 26.03.1992. 8. Shri Srivastava has further stated that the Division Bench of this Court in re; Ram Prakash versus Deputy Director of Consolidation, Hardoi and others, Consolidation No. 6574 of 2016 has clearly held that if any application etc. has been filed beyond the period so prescribed along with the application for condonation of delay, such application for condonation of delay should be decided first only then the matter/ issue may be heard on merits. 9. In the present case, the Survey Naib Tehsildar without adverting to the factum of delay has recalled its earlier order dated 18.11.1989 allowing the restoration application dated 26.03.1992 which is per se illegal. Therefore, as per Shri Srivastava, the order passed by the Appellate Authority and the Revisional Authority are valid and do not require any interference. 10. 9. In the present case, the Survey Naib Tehsildar without adverting to the factum of delay has recalled its earlier order dated 18.11.1989 allowing the restoration application dated 26.03.1992 which is per se illegal. Therefore, as per Shri Srivastava, the order passed by the Appellate Authority and the Revisional Authority are valid and do not require any interference. 10. Be that as it may, in an issue in question on the basis of serious allegations of fraud and forgery, the restoration application was filed on 26.03.1992 seeking recall of the earlier order dated 18.11.1989 of Survey Naib Tehsildar concerned but no application for condonation of delay has been filed along with aforesaid application nor any specific recital to that effect has been given in such application nor the authority concerned i.e. Survey Naib Tehsildar concerned has dealt with the factum of delay in its order dated 06.02.1993 whereby the restoration application dated 26.03.1992 has been allowed and order dated 18.11.1989 has been recalled. 11. Therefore, in view of the above, the order dated 06.02.1993 passed by Survey Naib Tehsildar, Faizabad is unwarranted and uncalled for inasmuch as the factum of delay should have been dealt with while passing the order dated 06.02.1993. However, no formal application of condonation of delay may be required in terms of the dictum of Apex Court in re; Sesh Nath Singh (supra) but in the aforesaid judgment of the Apex Court, it has been held that while passing the order the factum of delay should have been adverted to and the reasons and grounds of delay should have been considered even if no separate application for condonation of delay is filed if the issue is serious. Therefore, in that way the order dated 06.02.1993 suffers from illegality and perversity so the same is not sustainable in the eyes of law. 12. At the same time, notably, the allegation so levelled against the private opposite party are so serious and if those allegations are proved before the competent court of law, it will have serious ramifications. Therefore, the Appellate Authority while setting aside the order dated 06.02.1993 passed by the Survey Naib Tehsildar concerned should have given liberty to the petitioner to file an application for condonation of delay while remanding back the matter to the original authority to consider such application for condonation of delay and pass a fresh order, strictly in accordance with law. Therefore, the Appellate Authority while setting aside the order dated 06.02.1993 passed by the Survey Naib Tehsildar concerned should have given liberty to the petitioner to file an application for condonation of delay while remanding back the matter to the original authority to consider such application for condonation of delay and pass a fresh order, strictly in accordance with law. Therefore, in view of the facts and circumstances of the issue in question instead of remanding back the matter to the original authority, the Appellate Authority has only set aside the order dated 06.02.1993 passed by the original authority, hence that order may not be said to be a proper order, therefore, the order dated 16.06.1994 passed by the Appellate Authority is also liable to be set aside. At the same time, the Revisional Authority should have considered the relevant aspect that the allegations so levelled by the petitioner are so serious, therefore, such allegations needs proper adjudication so while rejecting the revision of the petitioner at least the matter should have been remanded back to the original authority by setting aside the order of the Appellate Authority but the Revisional Authority has not passed such order so in that way the order being passed by the Revisional Authority suffers from perversity and illegality and therefore, the same is also liable to be set aside. 13. Since the petitioner has filed review before the same authority i.e. Board of Revenue seeking review of the order dated 18.09.2001 after a substantial delay, therefore, the Board of Revenue has rightly observed that in the entire proceedings, the petitioner has approached the authorities after a substantial delay but so far as the Board of Revenue has observed that there is no error apparent on the order dated 18.09.2001 is not correct for the reason that this is not the issue which should have been closed only for the reason that the petitioner has approached the original authority i.e. Survey Naib Tehsildar seeking recall of earlier order without filing the condonation of delay application. If the petitioner has not filed an application for condonation of delay seeking recall of order dated 18.11.1989, the petitioner should have been given a liberty to file a fresh application along with condonation of delay and the direction should have been issued to the original authority to first decide the condonation of delay application and thereafter the issue in question on merits but the issue in question should not be closed finally looking into the facts and circumstances of the issue in question. Therefore, the order dated 11.08.2022 passed by the Board of Revenue rejecting the review of the petitioner is also liable to be set aside. 14. Accordingly, keeping in view the facts and circumstances of issue in question as well as the dictum of Apex Court in Sesh Nath Singh (supra) and the judgment of this Court in re; Ram Prakash (supra), I find it appropriate that the liberty is given to the petitioner to file a fresh restoration application before the Survey Naib Tehsildar, Sadar, Faizabad seeking recall of the order dated 18.11.1989 passed by the same authority along with application for condonation of delay explaining the reasons and grounds of delay properly within a period of two weeks from today and the authority concerned shall first consider and dispose of the application for condonation of delay by affording an opportunity of hearing to the parties concerned with expedition, preferably within a period of four weeks. If the competent authority finds that the delay is liable to be condoned, it shall pass an order on application for restoration and recall of the order dated 18.11.1989 and thereafter the matter may be decided on merits, strictly in accordance with law by affording an opportunity of hearing to the parties concerned within a further period of three months. 15. It is made clear that this Court has not entered into the merits of the issue, therefore, the competent authority i.e. Survey Naib Tehsildar, Sadar, Faizabad shall dispose of/ decide both the aforesaid applications i.e. application for restoration and recall of the order dated 18.11.1989 and application for condonation of delay in filing such application independently without being influenced from any findings or observations of this order. 16. In view of the aforesaid terms, the writ petition is disposed of finally.