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2023 DIGILAW 1936 (ALL)

Ashok Kumar v. State of U. P.

2023-08-10

CHANDRA KUMAR RAI

body2023
JUDGMENT Chandra Kumar Rai, J. Heard Mr. Anjani Kumar, Counsel for the petitioners, learned Standing Counsel for State-respondents and Mr. Pradeep Singh, Counsel for respondent No.4/Gaon Sabha. 2. The instant writ petition has been filed for the following relief: "A. issue a writ order or direction in the nature of certiorari quash the impugned order dated 21.02.2023 passed by respondent No.2 i.e. Collector/ District Magistrate Mirzapur, District-Mirzapur in Case No.161 of 2023 Computerized No.D202316530000161 (Ashok Kumar & another v. State of U.P.) and in Case No.162/2023 Computerized No.D202316530000162 (Shobhai @ Shobhai Ram v. State of U.P.) and in Case No.163 of 2023 Computerized No.D202316530000163 (Bholai v. State of U.P.) and in Case No.166 of 2023, computerized No.D2022316530000166 (Ramji v. State of U.P.), along with order dated 03.09.2022 passed by respondent no.3 i.e.Tehsildar(Judicial), Tehsil- Sadar, Distict Mirzapur inCase No. 5564/2017, Computerized Case No. T2017165331015564 (Reported Lekhpal v. Ashok and Others), and in Case No. 5558/2017, Computerized Case No.T2017135661015568 (Reported Lekhpal v. Shobhai) and in Case No.5562/2017, Computerized Case No. T2017165331015562 (reported Lekhpal v. Ramji) and in Case No.5561/2017, Computerized Case No. T2017165331015561 (Reported Lekhpal v. Bholai) respectively. B. Issue a writ of mandamus directing the Respondents Authorities to stay the compensation amount of Rs. 45900/- in regard to Case No. 5564/2017, (Reported Lekhpal v. Ashok), and the compensation amount of Rs. 22950/- in regard to Case No.5558/2017 (Reported Lekhpal v. Shobhai) and the compensation amount of Rs. 38250/- in regard to Case No.5562/2017(reported Lekhpal v. Ramji) and the compensation amount of Rs. 45900/- in regard to Case No.5561/2017 (Reported Lekhpal v. Bholai). C. Issue a writ order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case. D. Award the cost to the petitioners." 3. Counsel for the petitioners submitted that proceeding under Section 67 of U.P. Revenue Code, 2006 has been initiated and conducted in arbitrary manner against the petitioners. He further submitted that petitioners belong to Scheduled Caste category and residing in the village since before 17 years. He further submitted that without making proper survey/demarcation of the plot in dispute, order for ejectment and damages has been passed against the petitioners. He further submitted that petitioners belong to Scheduled Caste category and residing in the village since before 17 years. He further submitted that without making proper survey/demarcation of the plot in dispute, order for ejectment and damages has been passed against the petitioners. He submitted that in appeal filed under Section 67 (5) of the U.P. Revenue Code, 2006 along with the prayer for condonation of delay has been dismissed in arbitrary manner on the ground of limitation as well as on merit without considering the points set up in appeal for delay condonation as well as on merit. He further submitted that petitioners are in possession of the plot in dispute over which their construction situated but the order for ejectment and damages has been passed against the petitioners without proper consideration of petitioner's case. He further submitted that dismissal of the petitioners' appeal on the ground of limitation is also against the ratio of law laid down by the Apex Court in case of Collector, Land Acquisition Anantnag and another v. Mst. Kantiji and others reported in A.I.R. 1987 SC 1353 in which it has been held that in place of dismissing the matter on technical ground, matter should be decided on merits. He further placed reliance upon the case reported 2023 (1) ADJ 154 , (Rishipal Singh v. State of U.P. & Others) in order to demonstrate that proceeding under section 67 as well as 67(5) of U.P. Revenue Code, 2006 be decided after giving proper opportunity of hearing and making proper survey/ demarcation of the plot in dispute. He further submitted that petitioners' construction house has been demolished by the authorities during pendency of the petitioners' appeal under Section 67 of U.P. Revenue Code, 2006 which is illegal as petitioners' appeal was pending at that time. He placed reliance upon para No.10 of the writ petition in order to demonstrate the fact that petitioner's house has been demolished by the respondents in arbitrary manner. 4. On the other hand, learned Standing Counsel for the State- respondent submitted that land in dispute is recorded as nali in the revenue record, as such order for ejectment and damages has been passed in accordance with law. He further submitted that appeal filed by the petitioners has been dismissed on the ground of limitation as well as on merit, as such no interference is required against the impugned order. 5. He further submitted that appeal filed by the petitioners has been dismissed on the ground of limitation as well as on merit, as such no interference is required against the impugned order. 5. I have considered the arguments advanced by the counsel for the parties and perused the record. 6. There is no dispute about the fact that proceeding under Section 67 of U.P. Revenue Code, 2006 has been initiated against the petitioners and order for ejection and damages has been passed on 3.9.2022 against the petitioners. There is no dispute about the fact that appeal along with application under section 5 of Limitation Act has been filed before the Collector on 14.10.2022, which has been dismissed on the ground of limitation as well as on merit. 7. This Court in the case of Rishi Pal (Supra) has considered the scope of provisions of Section 67 of U.P. Revenue Code, 2006 as well as exercise of jurisdiction under Section 67 (5) of the U.P. Revenue Code, 2006 in which it is held that jurisdiction be exercised after giving proper opportunity of hearing and making proper survey/ demarcation. Paragraph No.74 of the judgment is relevant for perusal which is as under: "74. Thus, in my view, following guidelines be adopted as procedure to be applied to proceedings under Sections 67,67A and 26 of the U.P. Revenue Code. It is all aimed at ensuring transparency in the procedure, judiciousness in approach by the authorities and to thwart every complaint made with ulterior and oblique motive to dislodge a long settled possession and causing of unnecessary harassment to an innocent villager: (i) In case of complaint made on RC From 19, the official making it shall ensure that proper survey is done in the light of observations made in this judgment; the land, occupation of which has stood identified to be unauthorized is in exact measurement and so also shown in the survey map prepared on scale, as per the Land Revenue Survey Regulations, 1978; the exact assessment of damages on the basis of circle rate with details of calculation made on that basis. (ii) In a case of suo motu action, before issuing RC Form 20, the authority will ensure that proper report upon RC Form 19 is submitted as per para (i) above on parameters of sub-rule 1 Rule 67. (ii) In a case of suo motu action, before issuing RC Form 20, the authority will ensure that proper report upon RC Form 19 is submitted as per para (i) above on parameters of sub-rule 1 Rule 67. (iii) RC Form 20 must be accompanied by a copy of report and spot survey submitted along with RC Form 19 to the person against whom proceedings have been instituted, or even otherwise submitted in case of suo motu action vide para (ii) above. (iv) Upon reply being filed to the notice, if authority finds that spot survey/explanation report is not satisfactory, it may order for a fresh spot report to be prepared in presence of the party aggrieved. (v) In the event, objection includes a plea of statutory protection/ benefit under Section 67-A, the authority should invite the objection from the Gaon Sabha, and will decide the same along with the matter under Section 67, without requiring aggrieved party to move separate application under Section 67-A. (vi) If the report is admitted on record, may be in case no objection is filed, the authority must ensure presence of the person preparing the report before it, to prove the report by his statement, with a right to aggrieved party to cross question him. (vii) The authority must endeavour to decide the case within time framed provided under the relevant Act and the Rules and should desist from granting adjournment to the parties in a routine manner. (viii) In case of appeal under Section 67(5) of the U.P. Revenue Code, 2006, preferred/ filed within the time prescribed along with interim relief application, the interim relief application as far as possible should be decided within two weeks' time with prior notice to other side and where plea of settlement under Section 67-A has been taken before Assistant Collector-1st Class, and damages to the tune of 25 % at-least of the total damages are paid and an affidavit of undertaking is filed for not raising any further construction upon the land in question, the authorities including civil administration should avoid taking any coercive measure pursuant to the order appealed against until the disposal of interim relief application. The Appellate authority may also consider granting interim relief on the very first day of filing of appeal with stay application if above conditions are fulfilled by the appellant. The Appellate authority may also consider granting interim relief on the very first day of filing of appeal with stay application if above conditions are fulfilled by the appellant. (ix) The appellate authority should as far as possible decide the appeal within a period of two months of its presentation." 8. So far as the dismissal of the appeal on the ground of limitation, the Apex Court in case of Collector, Land Acquisition Anantnag (Supra) has held that in place of dismissing the matter on technical ground, matter should be decided on merits. Para No.3 of the above mentioned Supreme Court judgment is relevant for perusal, which is as follows: "3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub-serves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- "Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 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." 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step motherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides." 9. It is material that appeal filed by petitioner was barred by limitation of hardly 11 days but appellate court has dismissed the appeal on the ground of limitation. Trial Court has also afforded proper opportunity of hearing as well as not conducted proper survey/demarcation of the plot in dispute as such interest of justice requires that matter should be examined afresh by trial court/Tehsildar on merit. 10. Considering the facts and circumstances of the case, impugned order dated 21.10.2023 passed by respondent No.2 in all the four appeals as mentioned in prayer clause as well as order dated 03.09.2022 passed by respondent No.3 in all the four cases as mentioned in prayer clause are liable to be set aside and are hereby set aside. The Writ petition stands allowed in part and matter is remitted back before the respondent no.3/Tehsildar to register the aforementioned four cases under section 67 of U.P. Revenue Code, 2006 to its original number and decide the same after proper opportunity of hearing and making proper survey/ demarcation of the plot in dispute, the cases shall be decided within period of four months from the date of production of certified copy of this order. It is further directed that if the proceeding under Section 67 of U.P. Revenue Code, 2006 is decided in favour of the petitioners, the petitioner's construction which has been demolished in arbitrary manner by the state authority shall be reconstructed accordingly.