Mohinder Singh v. Mr. C.S. Brar, DAG, Punjab

proprietors/co-sharers, the writ petition should be dismissed. Insofar as the CWP No.20716 of 2008 5 order condoning delay, it is admitted that no notice was issued to the petitioner but it is argued that as the order passed by the Collector was vitiated by fraud, the appellate authority rightly condoned the delay, took notice of the malafide order passed by the Collector and restored the ownership of the Panchayat. I have heard counsel for the parties, perused the impugned orders but as I propose to decide the writ petition on the legality or the order condoning delay, it would be inappropriate to record any opinion on arguments relating to the question of title. Section 11 (2) of the Act reads as follows :- “11. Decision of claims of right, title or interest in Shamilat deh - (1) XX XX XX (2) Any person or a Panchayat aggrieved by an order of the Collector made under sub-section (1) may, within sixty days from the date of the order, prefer an appeal to the Commissioner in such form and manner as may be prescribed and the Commissioner may after hearing the appeal, confirm, vary or reverse the order appealed from and may pass such order as he deems fit.” Section 11(2) prescribes a period of 60 days, for filing an appeal, from the date of the order passed under Section 11(1) of the Act. Section 11(2) of the Act, however, does not confer power to condone delay. This anomalous situation can, however, be overcome by invoking the provisions of Section 29(2) of the Limitation Act. Section 29(2) CWP No.20716 of 2008 6 provides that provisions of Sections 4 to 24 of the Limitation Act, shall apply to a special statute, except to the extent they are excluded by the special statute. The Punjab Village Common Lands (Regulation) Act, 1961, is a special statute but does not exclude the applicability of Sections 4 to 24 of the Limitation Act. Section 29(2) of the Limitation Act reads as follows :- “29. Savings – (1) XX XX XX (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.” (emphasis provided) A perusal of the latter part of Section 29(2) of the Limitation Act makes it abundantly clear that Sections 4 to 24 (inclusive of Section 5) shall apply to an appeal filed under Section 11(2) of the Act. The Commissioner may, therefore, condone delay in the filing of an appeal, by invoking the provisions of Section 5 of the Limitation Act. Section 5 of the Limitation Act, prescribes the procedure for condonation of delay and reads as follows :- CWP No.20716 of 2008 7 “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, 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.” Section 5 of the Limitation Act, clearly postulates that delay in filing an appeal can only be condoned, if sufficient cause is pleaded and proved. In addition, delay can only be condoned after notice is issued to the opposite party granting him an opportunity to oppose the application for condonation of delay. The pre-requisites of the exercise of power to condone delay are : (a) an application filed under Section 5 of the Limitation Act read with Section 11(2) of the Act; (b) the application should disclose “sufficient cause” for the delay; (c ) a prior notice should be issued to the opposite party and (d) delay has to be condoned by passing a speaking order showing a due consideration of the sufficient cause disclosed by the applicant. The fact that there may have been fraud or negligence on the part of the predecessor Sarpanch, in filing an appeal is a relevant factor for establishing “sufficient cause”, does not absolve an applicant of his responsibility, of pleading sufficient cause or of the Commissioner in serving a prior notice upon the opposite party. The plea that delay should be liberally condoned, though true, can only be considered after notice is issued to the opposite party. Admittedly, the appeal filed on 24.20.2007 was accompanied CWP No.20716 of 2008 8 by an application under Section 5 of the Limitation Act. The application for condonation of delay filed alongwith the appeal reads as follows :- “ That the accompanying appeal is being filed in this Hon'ble Court and the same is very likely to succeed on the grounds mentioned therein which may be read as part of this application.

2. That as a matter of fact the order was not pronounced on the same day so the appellant were not aware of the decision. The counsel for the appellant informed the appellant about the decision and immediately applied for the copy and the same was given to them on 19.10.2007 and after obtaining the certified copy of the order the appellant engaged the present counsel immediately and the appeal is being filed. The delay in filing the appeal is neither intentional nor willful but due to the above said reason. It is, therefore, respectfully prayed that the delay in filing the present application may kindly be condoned in the interest of justice.” The delay was condoned on 25.10.2007 by recording the following order :- “ Arguments on limitation point heard, delay condoned. Arguments on stay matter also heard, Operation of the impugned order is stayed. Call for record and summon the respondents to come up on

30.11.2007.” CWP No.20716 of 2008 9 A perusal of the above order leaves no manner of doubt that delay was condoned without issuing notice to the petitioner (respondent in the appeal) and then also without assigning any reason. It is true that courts tend to lean towards a liberal exercise of their power to condone delay, but this alone does not absolve a court or a quasi judicial forum of its duty to afford an opportunity of hearing to the opposite party and thereafter pass a speaking order. It is,therefore, apparent that as no notice was issued to the petitioner and the order condoning delay was passed without assigning any reason, it is null and void. As a consequence, all subsequent proceedings and orders passed by the Commissioner must necessarily meet the same fate. In view of what has been stated herein above, the writ petitions are allowed, the orders dated 25.10.2007 and 14.3.2008 are set aside and the matter is remitted to the Commissioner, to decide the application for condonation of delay, after affording an opportunity to file reply, address arguments and if deemed appropriate after affording an opportunity to the Gram Panchayat to file a detailed application setting out reasons for delay in filing the appeal. During the pendency of the appeal, parties shall maintain status-quo with respect to ownership and possession of the land in dispute. Parties are directed to appear before the Director, Rural Development and Panchayat Department, Punjab,on 28.9.2010.

20.8.2010 GS (RAJIVE BHALLA) JUDGE