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2023 DIGILAW 355 (UTT)

State of Uttarakhand v. Kuldeep Singh

2023-06-09

SHARAD KUMAR SHARMA

body2023
JUDGMENT : In all these writ petitions, they have quite elaborative factual background, but the same is not required to be considered, at this stage, where the issue is only confined to as to whether, the revisional court, at the stage of considering the delay condonation application filed in support of the revision under section 219 of the Land Revenue Act, could have rejected the delay condonation application, without even considering the grounds, which were taken in the delay condonation application and that too by the cursory observations and by being over dominated, bythe plea taken by the other side that the delayed revision has been preferred, after a delay of over six years. 2. The question would be, as to whether there was a reasonable delay of six years or not, which could have been only decided, subject to the condition that the revisional court has considered the logic pleaded for condonation of the delay as sought by the State in filing the revision. In the proceedings, which were arising out of section 54 of the Land Revenue Act of 1901, the matter travelled before the appellate court, and the appellate court decided the matter by the judgment dated 13.09.2001, against which the revision has been preferred by the petitioner. The revision when it was preferred, it accompanied with it an application for seeking a condonation of the delay, and the reasons for condonation of the delay was also explained in the memorandum of the revision itself, as contained in paragraph no.2, which is extracted hereunder:- ^^2- ;g fd fuxjkuh esa iz'Ukxr vkns'k fnukad 6-9-2001 ,oa 13-9-2021 dh tkudkjh lgk;d vfHkys[k vf/kdkjh m/keflaguxj }kjk i= la[;k 916@,-vkj-vks@ihŒdsŒ@fnukad 30-03-2007 dks ftykf/kdkjh egksn; dks fn;s tkus ds mijar gqvkA ftykf/kdkjh egksn; }kjk fn;s x;s funsZ'k ds Øe esa i=koyh dk ijh{k.k o lR; izfrfyfi izkIr gksus ij voj U;k;ky; }kjk dksbZ fof/kd izfØ;k viuk, fcuk fof/kfo:) vkns'k ikfjr fd, tkus ds dkj.k iz'uxr vkns'k ls {kqC/k gksdj ;g fuxjkuh izLrqr dh tk jgh gSA^^ 3. The reason taken by the State for seeking condonation of the delay was that, the impugned order passed by the appellate authority on 06.09.2001, 13.09.2001, the knowledge of the same was not be attributed to the State, till the same was actually brought to the knowledge of the petitioner by the order of the Assistant Record Officer videits communication No.916/ARO/PK dated 30.03.2007, when it was submitted before the DM, and it was at the stage when the DM was brought to the knowledge of the earlier orders dated 06.09.2001 and 13.09.2001, the District Magistrate had given the directions to prefer a revision, against the appellate order, and consequently the revision was preferred, by filing the same before the court of Record Officer on 10.05.2007. 4. The said delay condonation application came up for consideration before the revisional court, and the revisional court, in a very cursory manner by the impugned order dated 18.06.2014, has rejected, the delay condonation application. Primarily, even if the reasons which has been taken into consideration as assigned by the court for rejecting the delay condonation application, the court had observed that prior to deciding the revision, the delay condonation application was required to be considered. There cannot be any dispute with regards to the said preposition of law, as the decision on the delay condonation application, prior to the venturing to decide the revision on merits is a condition precedent, which has to be decided first, before hearing revision on merits. There cannot be any dispute with regards to the said preposition of law, as the decision on the delay condonation application, prior to the venturing to decide the revision on merits is a condition precedent, which has to be decided first, before hearing revision on merits. Hence, while considering the delay condonation application, the court of Record Officer has only given the following observations:- ^^eSus i=koyh dk lE;d voyksdu fd;k rFkk i{kks ds fo}ku vf/koDrkx.k dh cgl dk ifj'khyu fd;kA fuxjkuh esa loZ izFke fopkj.kh; fcUnq ;g gS fd fuxjkuh dks xq.k&nks"k ds vk/kkj ij fuLrkj.k djus ls iwoZ fuxjkuh dk foYkEc ds fcUnq ij /kkjk 5 fe;kn vf/kfu;e ds izkFkZuk i= dk fuLrkj.k fd;k tkuk vko';d gS vFkok ughA ekŒ rhu U;k;ky; rFkk mPpre U;k;ky; }kjk nh xbZ fof/k O;oLFkkvksa ,oa i{kks ds fo}ku vf/koDrkvks dh cgl ds euu ls ;g Li"V gksrk gS fd xq.k&nks"k ds vk/kkj ij fuxjkuh dk fuLrkj.k djus ls iwoZ /kkjk 5 ifjlhek vof/k ds izkFkZuk&i= dk fuLrkj.k djus ls iwoZ /kkjk 5 ifjlhek vof/k ds izkFkZuk&i= dk fuLrkj.k fd;k tkuk fof/k laxr gksxkA fuxjkuhdrkZ jkT; ljdkj dh vksj ls vR;f/kd foyEc 6 o"kZ i'pkr fuxjkuh nk;j dh xbZ gSA /kkjk 5 fe;kn vf/kfu;e ds izkFkZuk&i= es foYkEc e"kZ.k ds lEca/k esa dksbZ larks”ktud ,oa ;qfDRk;qDRk dkj.k ugha fn;k x;k gSA bl dkj.k /kkjk 5 fe;kn vf/kfu;e dk izkFkZuk&i= dkyckf/kr gksus ds dkj.k fujLr fd, tkus ;ksX; gSA^^ 5. The only observation has been to the effect that the revision has been preferred at a highly belated stage after six years, and consequently it had denied to grant the benefit of condoning the delay holding, thereof, that the reasons given in the delay condonation application were not satisfactory. The question would be, as to whether the reasons given in the delay condonation application were satisfactory or not, that could have only been arrived at by the Record Officer, when he had considered the actual ground which were taken by the appellant, pertaining to the communication made to the revisional authority, about the orders passed by the appellate authority, which was for the first time imparted by the communication of the Assistant Record Officer on 30.03.2007, and later on, the revision was preferred on the orders passed by the District Magistrate. 6. 6. What impact would the communication of the Assistant Record Officer, Udham Singh Nagar would have, as made on 30.07.2007, on the delay condonation application? what impact will the order of the DM would have? when he permitted for preferring of the revision along with the delay condonation application, are not the aspect, which has been at all considered by the revisional court while rejecting the delay condonation application, by the impugned orders by merely and cursorily observing, that the same has been preferred at a highly belated stage after six years. 7. Merely that observation made in the revisional court’s order may not amount to be a logical reason at all under law, by virtue of which, it could be at all inferred that the revisional court has at all, ventured into the grounds taken in the delay condonation application, to condone the delay as it was sought by the petitioner/State before the revisional court. In fact, it would not be inappropriate to observe that, the revisional court was over dominated by the fact that the revision was preferred after six years, but then, merely that the revision was preferred after six years that itself may not be a logical reason to reject the delay. The court ought to have recorded the findings, as to what were the factors which contributed in the delay of six years in preferring the revision, which was pleaded by the petitioner/State, in the delay condonation application filed in support to the revision. Thus, the order passed by the revisional court, in fact, it happens to be even without even making the reference to the grounds taken by the petitioner in the delay condonation application, and by merely drawing its own fictitious ground, that since the revision has been filed with the delay of six years, it is bound to be rejected. 8. Learned counsel for the respondents has submitted, that there cannot be a different parameters to be adopted while considering the delay condonation application preferred by the State, and in reference thereto, he places reliance on the judgment rendered by the Hon’ble Apex Court as reported in 2021 (1) SCC (LS) 84, “State of Madhya Pradesh Vs. Bherulal”, and particularly, the learned counsel for the respondent had made reference to the observations, which has been made by the Hon’ble Apex Court in paragraphs 2 and 3. Bherulal”, and particularly, the learned counsel for the respondent had made reference to the observations, which has been made by the Hon’ble Apex Court in paragraphs 2 and 3. The reason, which has been given by the Hon’ble Apex Court under the circumstances of the said case, was that the Court has not? considered as to what were the pleadings raised in the delay condonation application and that application itself didn’t dispel a logical reasons for condonation of the delay, and the Court has rejected the delay condonation application because of the fact that it was pleaded in the delay condonation application, that the relevant documents were not available to the State while preferring the delay condonation application, that was construed as not to be a valid reason to decline to condone the delay as preferred by the State/petitioner. 9. This judgment will be of no avail to the respondent, because here the reason, which was given by the State for seeking condonation of the delay was found to be unreasonable by the Hon’ble Apex Court as non availability of the documents at the behest of the State, cannot be said to be a reasonable ground to condone the delay. This was a different situation altogether. 10. In the instant case, the delay was because of lack of the communication made by the office of the Assistant Record Officer, as the communication of the order was made at a belated stage and the revision was thus preferred thereafter on the direction of the DM. What bearing would the communication made by the Assistant Record Officer on 06.09.2001 and 13.09.2001, would have had on the delay condonation application, what bearing would the direction of the DM would have of preferring of the revision with the delay condonation application, are not the aspect, which hasbeen at all considered by the revisional court while rejecting the delay condonation application. 11. Hence, the presumption would be, that the impugned order passed on 18.06.2014, was without the application of mind and even without considering the grounds taken by the State in support of the delay condonation application. This was not the spirit, which was laid down by the Hon’ble Apex Court, in the matters of “State of Madhya Pradesh Vs. Bherulal”, it was the case where the ground taken by the State was considered and then it was found to be unreasonable. This was not the spirit, which was laid down by the Hon’ble Apex Court, in the matters of “State of Madhya Pradesh Vs. Bherulal”, it was the case where the ground taken by the State was considered and then it was found to be unreasonable. The unreasonability of the ground could only be concluded, when the Court considers the ground on its own merit, if the ground itself is not considered and no observations have been recorded to the contrary, it cannot be said that the revisional court has at all applied its mind to the delay condonation application and the grounds taken, therein, for seeking condonation of the delay. 12. In another judgment on which the learned counsel for the respondent has placed reliance is that of as reported in 2019 (11) Scale 484 , “State of Bihar and others Vs. Deo Kumar Singh”, and particularly, once again he has referred to the paragraph nos.2, 3, 4 and 5 of the said judgment. The Hon’ble Apex Court in the circumstances of the said case, where the condonation of the 365 days of the delay was being sought in the exercise of its extraordinary jurisdiction was denied to be condoned on the ground, that the Court while dealing with the material available in support of the delay condonation application has observed that the Postmaster (general) had rather acted lethargically in seeking the condonation of the delay in the proceedings preferred before the Hon’ble Apex Court. Meaning thereby, there was lack of material communication and the lethargy on the part of the State Agency, which was considered by the Hon’ble Apex Court, as an aspect, for condoning the delay, none of the attributes given therein, would be attracted in the instant case where the judgment impugned is silent with regards to the consideration of the reasons given in the delay condonation application by the State. 13. Learned counsel for the petitioner/State though without there being any relevance of the same, has referred to the judgment of the coordinate Bench of this Court as reported in 2004 (97) RD 696, “Smt. Manorama Devi and others Vs. Board of Revenue U.P. Lucknow”. 14. 13. Learned counsel for the petitioner/State though without there being any relevance of the same, has referred to the judgment of the coordinate Bench of this Court as reported in 2004 (97) RD 696, “Smt. Manorama Devi and others Vs. Board of Revenue U.P. Lucknow”. 14. With all due reverence at my command, I am unable to accept the contention of the learned counsel for the applicant, when he makes reference to paragraph 18 of the said judgment pertaining to the implications of section 40A of the Land Revenue Act of 1901. 15. The consideration of the impact of section 40A of the Act, with regards to the sustainability of the writ petition is only when the matter itself is principally being considered to be decided on merits under law, and not at the stage when the proceedings is being considered with regards to the propriety of the delay condonation application. Hence, this judgment too with regards to the bar being created under section 40A of the Act, would not be attracted in this case, where it is only an aspect of the delay and its condonation, which is the subject matter because impact of section 40A of the Act, if at all, it was creating any bar, it ought to have been agitated by the respondent at the first available opportunity, when the proceedings were taken before the Assistant Record Officer, and not at a later stage when only a delay was being considered. 16. The Hon’ble Apex Court in a judgment reported in 1987 (2) SCC 107 “Collector, Land Acquisition, Anantnag and another Vs. Mst. 16. The Hon’ble Apex Court in a judgment reported in 1987 (2) SCC 107 “Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others”, has dealt with the word as to what the “sufficient cause” would mean as referred to under section 5 of the Act, while considering the delay condonation application, the sufficient cause doesn’t mean that reasonable cause, rather, sufficient cause would mean that apparently the reason, which has been given for seeking condonation of the delay, it should appeal to the court that there could be a possibility for the ground taken in the delay condonation application to condone the same, and it has not to be meticulously speculated upon by the Court, as to whether the grounds taken are at all reasonable or not, and particularly, in the instant case when the Court has not even at all referred to the pleadings raised by the State in the delay condonation application, that itself would vitiate the impugned order, which is without application of mind and without any reasonable analogy drawn by the revisional court. The relevant paragraph no.3, of the judgment of the Mst. Katiji, is extracted hereunder:- “The legislature has conferred the power to condone delay by enacting Section 51 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 subserves 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:- 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 con- doned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. 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 con- doned 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. 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 stepmotherly treatment when the 'State' is the applicant 1. 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 causefor not preferring the appeal or making the application within such period. praying for condonation of delay. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient causefor not preferring the appeal or making the application within such period. praying for condonation of delay. In fact experience shows that on account of an impersonal machinary (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 mertis 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.” 17. The law of the limitation, and the basic underlining principles behind section 5 of the Act, is that it is not to be used as a weapon to deprive a litigant to put up his case before a court of law on its own merit. The law of limitation is only for the purposes to defend the right, which has accrued in favour of the party in whose favour the judgment has been rendered, and which has been put to challenge before the superior court, that right of defending the right of the person in whose favour the order has been rendered has to be liberally construed in the light of the judgment of the Mst. Katiji and others’, as well as the judgment as reported in 2004 (1) SCC 119 , “Apangshu Mohan Lodh and others Vs. Katiji and others’, as well as the judgment as reported in 2004 (1) SCC 119 , “Apangshu Mohan Lodh and others Vs. State of Tripura and others”, as well as the judgment reported in AIR 1988 SC 897 , “G. Ramegowda, Major etc Vs. The Special Land AcquisitionOfficer, Bangalore” AIR 1962, SC 361, “Ramlal and others Vs. Rewa Coalfields Ltd”, which has observed that the rule of the limitation are the one for convenience and not intended to harm a valuable right of a party to the proceedings, because the basic function of the court of law is to adjudicate an issue on merits and not to reject the same by adopting a hyper technical view, which has been deprecated by the Hon’ble Apex Court in the yet another judgment rendered by Hon’ble Supreme Court in a judgment reported in 2001 (8) SCC 24 , “Shyam Sunder and others Vs. Ram Kumar and another”. 18. In order to summarize the over all issue raised by the learned counsels for the parties, this Court is of the view, that in the instant case none of the principles as argued by the learned counsel for the respondent would be attracted, when the revisional court has utterly and apparently failed to consider even the ground taken in the delay condonation application and has not assigned any reasons, as such, to it whether to accept or not to accept the reasons given therein. That in itself will amount to the fact, that the impugned order of rejecting the delay condonation application has been without an application of mind, and as such the impugned order rejecting the delay condonation application preferred by the petitioner, since being without an application of mind, the same cannot be sustained, and is hereby quashed. 19. As a consequence thereto, the writ petition would stand allowed. The matter is relegated back to the court of Record Officer to reconsider the delay condonation application on its own merit, and then pass a reasonable order, after considering the grounds already taken in the delay condonation application at the stage prior to the venturing to decide the revision under section 219 of the Land Revenue Act of 1901.