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2024 DIGILAW 1180 (ALL)

Rama Singh v. State Of UP

2024-05-01

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. 1. Heard Mr. Shamim Ahmad, learned counsel for the petitioner, Mr. Sheetla Sahai Srivastava, learned counsel for respondent no.5, Mr. Azad Rai, learned counsel for respondent no.4-Gaon Sabha and Mr. Hari Mohan Srivastava, learned Additional Chief Standing Counsel for the State-respondents. 2. Brief facts of the case are that the proceeding under Section 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "U.P.C.H. Act) was initiated by respondent nos.5 & 6, which was registered as Case No.366/584, under Section 12 of U.P.C.H. Act before Consolidation Officer, Sadar, Fatehpur. The aforementioned proceeding was dismissed for non-prosecution on 28.6.2017. Against the order dated 28.6.2017, an application for recall/restoration application along with the prayer for delay condonation has been filed by respondent nos.5 & 6 on 8.3.2018. The aforementioned restoration application dated 8.3.2018 was dismissed on the ground of limitation by Consolidation Officer vide order dated 2.12.2022. Against the order dated 2.12.2022, revision under Section 48 of U.P.C.H. Act was filed before Deputy Director of Consolidation by respondent nos.5 & 6. The aforementioned revision was heard and decided vide order dated 31.1.2024 setting aside the order of the Consolidation Officer dated 2.12.2022 and remanded the matter back before the Consolidation Officer to decide the restoration application dated 8.3.2018 taking liberal view on the delay condonation matter, hence this writ petition challenging the order dated 31.1.2024 passed by Additional District Magistrate (Judicial)/Deputy Director of Consolidation), Fatehpur. 3. Learned counsel for the petitioner submitted that respondent nos.5 & 6 has filed the application under Section 12 of U.P.C.H. Act on the basis of sale deed alleged to be executed in her favour on 18.8.2006. He further submitted that the application under Section 12 of U.P.C.H. Act filed by respondent nos.5 & 6 was dismissed for non-prosecution in the year 2017. He next submitted that the sale deed dated 18.8.2006 has been challenged by the petitioner in the civil Court and civil suit is pending. He also submitted that the aforementioned proceeding under Section 12 of U.P.C.H. Act was dismissed for non-prosecution and the time barred restoration application filed by respondent no.5 has been rightly rejected on the ground of limitation but revisional Court has exceeded his jurisdiction in setting aside the order passed by Consolidation Officer rejecting the restoration application on the ground of limitation. He further submitted that respondent nos.5 & 6 have transferred the property in dispute in favour of respondent no.7, as such, respondent no.5 cannot be permitted to pursue the proceeding. He next submitted that the impugned revisional order is liable to be set aside. 4. On the other hand, Mr. Sheetla Sahai Srivastava, learned counsel for respondent no.5 submitted that the proceeding under Section 12 of U.P.C.H. Act has been dismissed for non-prosecution and restoration application filed by the petitioner has been dismissed on the ground of limitation. He further submitted that the proceeding under Section 12 of U.P.C.H. Act, which was initiated on behalf of respondent nos.5 & 6 on the basis of sale deed executed in her favour is to be decided on merit rather on technical grounds. He next submitted that the Deputy Director of Consolidation has rightly exercised his revisional jurisdiction under Section 48 of U.P.C.H. Act in setting aside the order dismissing the restoration application and directing the Consolidation Officer to decide the restoration application afresh taking liberal view of the delay condonation matter. He lastly submitted that no interference is required in the matter and the writ petition is liable to be dismissed. 5. I have considered the argument advanced by learned counsel for the parties and perused the records. 6. There is no dispute about the fact that the proceeding under Section 12 of U.P.C.H. Act has been dismissed for non-prosecution and restoration application filed by respondent no.5 has been rejected on the ground of limitation but under the impugned revisional order the order rejecting restoration application has been set aside and the matter has been remanded back before the Consolidation Officer to decide the restoration application afresh taking liberal view on delay condonation matter. 7. Since, the proceeding under Section 12 of U.P.C.H. Act initiated by respondent nos.5 & 6 has been dismissed for non-prosecution, as such, the interest of justice requires that the proceeding is to be decided on merit in accordance with law. 8. The Hon'ble Apex Court in the case reported in AIR 1987 SC 1353 , Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others has been held that in place of rejecting the matter on technical grounds, the matter should be decided on merits. 8. The Hon'ble Apex Court in the case reported in AIR 1987 SC 1353 , Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others has been held that in place of rejecting the matter on technical grounds, the matter should be decided on merits. Paragraph No.3 of the judgment rendered in Collector Land Acquisition Anantnag (supra) is as follows: "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 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 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 meaand Tehsildar, Judicial, Tehsil-Kairana, District-Shamlid."n 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. 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. 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. 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. Considering the entire facts and circumstances of the case, no interference is required against the impugned order dated 31.1.2024. 10. The writ petition is dismissed. However, respondent no.3 i.e. Consolidation Officer, Sadar, District-Fatehpur is directed to pass necessary order on restoration application dated 8.3.2018 after passing the order on the delay condonation matter in the light of the judgment of Hon'ble Apex Court in the case of Collector, Land Acquisition Anantnag and Another (supra), and decide the proceeding under Section 12 of U.P.C.H. Act on merit after framing issues and giving parties to lead evidence in accordance with law, expeditiously preferably within a period of six months from the date of production of certified copy of this order before respondent no.2.