Collector, Land Acquisition Anantnag and Another v. Mst. Kantiji Others in order to demonstrate that matter should be decided on meri

1. Heard Mr. M.D. Singh Shekhar, learned Senior Counsel assisted by Ms. Rekha Singh, learned counsel for the petitioners- applicant, learned Standing Counsel for the State respondents and Mr. Devesh Kumar Verma, learned counsel for private respondents.

2. The instant recall applications along with the prayer for condonation of delay have been filed to recall the order dated 10.5.2018 dismissing the writ petition as withdrawn against the applicants/ petitioner no.1/1 (Manoj Kumar), 1/2 (Chandra Kant), 1/3 (Srimati), petitioner no.2 (Dalel Singh), petitioner No.9, Om Prakash @ Omkar.

3. Mr. Devesh Kumar Verma, learned counsel for the private respondents submitted that writ petition was dismissed as withdrawn on the proper application supported by affidavit in respect to the applicants of the instant applications, as such, instant recall applications filed by five applicants cannot be entertained. He further submitted that filing of instant recall application is abuse of process of law, as such, the same are liable to be rejected.

4. I have considered the arguments advanced by learned counsel for the parties.

5. Considering the averment made in paragraph Nos. 5,6 and 7 of the each affidavit filed in support of aforementioned recall applications filed by five applicants to the effect that applications have been defrauded by petitioner no.14, the recall applications should be allowed after condonation of delay.

6. The explanation given for delay is satisfactory.

7. Delay in filing the restoration application is condoned.

8. The cause shown in the affidavit for recalling the order dated 10.5.2018 is sufficient.

9. The order dated 10.5.2018 in respect to petitioner no.1/1, 1/2, 1/3, 2 and 9 is recalled and writ petition is restored to its original number in respect to petitioner nos. 1/1, 1/2, 1/3, 2 and 9.

10. The applications are accordingly allowed. In Re: Civil Misc. Impleadment Application 14 of 2018

1. Heard Mr. Yogesh Kumar Singh, learned counsel for the applicant.

2. No ground for impleadment is made out.

3. The application is accordingly rejected. Order on Writ Petition

1. Heard Mr. M.D. Singh Shekhar, learned Senior Counsel assisted by Ms. Madhuri Singh, learned counsel for the petitioners, Mr. Devesh Kumar Verma, learned counsel for private respondents and learned Standing Counsel for the State.

2. Brief facts of the case are that plot No. 396/1 area 53 decimal and 397/1 area 2.02 acre were recorded in the name of the petitioners in the basic year of consolidation operation. Against the basic year entry of the plot in question, title objection under Section 9A (2) of U.P. Consolidation of Holdings Act, 1953 hereinafter referred as U.P.C.H. Act was filed by respondent nos. 4 to 7 which was allowed by Consolidation Officer vide order dated 7.12.1987 to record the name of respondent nos. 4 to 7 as bhumidhar with transferable right in respect to plot in question after expunging the names of petitioners. A time barred appeal under Section 11 (1) of the U.P.C.H. Act along with prayer for condonation of delay of about one year and six months was filed which was dismissed by Assistant Settlement Officer of Consolidation vide order dated 5.9.1990 on the ground of limitation. Petitioners filed revision under Section 48 of the U.P.C.H. Act which has been dismissed by Deputy Director of Consolidation vide order dated 5.7.1991. Hence this writ petition for the following relief:- "(i) A writ, order or direction in the nature of certiorari quashing the order dated 5.7.1991 passed by the Deputy Director of Consolidation and order dated 5.9.1990 passed by Settlement Officer of Consolidation. (ii) A writ, order or direction in the nature of mandamus directing the respondents to decide the case on merit after condoning delay in filing the appeal by the petitioner before Settlement Officer of Consolidation."

3. This Court entertained the matter on 27.9.1991 and issued notices to the respondent nos. 4 to 8.

4. Learned Senior Counsel for the petitioners submitted that title appeal filed along with the delay of one and half year has been dismissed on the ground of limitation by Appellate Court/ Assistant Settlement Officer Consolidation. He submitted that proper explanation was furnished in appeal by the petitioners but the Appellate Court has taken technical view in the matter and dismissed the title appeal on the ground of limitation. He submitted that revision filed by petitioners has also been dismissed without considering the case as set up in revision. He further placed reliance upon the judgement of Hon'ble Apex Court reported in AIR 1987 SC 1353, Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others in order to demonstrate that matter should be decided on merit rather on technical grounds.

5. On the other hand, Mr. Devesh Kumar Verma, learned counsel for private respondents submitted that there was no proper explanation of delay of one and half year in filing the title appeal, as such, the title appeal was rightly dismissed on the ground of limitation and the order has been maintained in revision in accordance with law, as such, no interference is required against the impugned orders.

6. I have considered the arguments advanced by learned counsel for the parties and perused the records.

7. There is no dispute about the fact that against the order of Consolidation Officer dated 07.12.1987 passed in the proceeding under Section 9A (2) of the U.P.C.H. Act, title appeal was filed on behalf of petitioners with delay of one and half year. There is also no dispute about the fact that title appeal filed by petitioners was dismissed on the ground of limitation and order has been maintained in revision.

8. The perusal of the appellate order fully demonstrate that the Appellate Court has taken technical view in the title appeal filed by petitioner while dismissing the appeal on the ground of limitation. The delay in filing the appeal was one and half year which was properly explained by the petitioners in application as well as affidavit filed in support of appeal.

9. The perusal of the paragraph No.3 of the judgement of Hon'ble Apex Court reported in Collector, Land Acquisition Anantnag (Supra) will be relevant which is as under:- "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 principleHon'ble Apex Court in recent judgment reported in 2023 (16) RD 107 S. Madhusudhan Reddy Vs. Narayana Reddy 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 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.1997 (0) RD 562 Shivraji Vs. Deputy Director of Consolidation

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. "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."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 perspect1997 (0) RD 562 Shivraji Vs. Deputy Director of Consolidation ive, 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 1997 (0) RD 562 Shivraji Vs. Deputy Director of Consolidation 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."

10. Considering the ratio of law laid down by Hon'ble Apex Court as well as the evidence brought on record, the impugned appellate order dated 5.9.1990 passed by Settlement Officer Consolidation and revisional order dated 5.7.1991 passed by Deputy Director of Consolidation are liable to be set aside and the same are hereby set aside. The writ petition stands allowed and matter is remitted back before Officer Consolidation, Etawah to register the appeal on its original number in respect to the petitioners except petitioner nos. 3/1 to 3/6, 4/1 to 4/4, 5, 10, 12/1 to 12/3, 13/1 who have withdrawn the writ petition in respect to their claim. The aforementioned appeal shall be decided on merit after passing necessary order for condonation of delay expeditiously preferably within period of three months from the date of production of certified copy of this order. the respondent Settlement no.2,

11. No order as to costs. Order Date :- 28.4.2025 Vandana Y. VANDANA YADAV High Court of Judicature at Allahabad

1. Heard Mr. M.D. Singh Shekhar, learned Senior Counsel assisted by Ms. Rekha Singh, learned counsel for the petitioners- applicant, learned Standing Counsel for the State respondents and Mr. Devesh Kumar Verma, learned counsel for private respondents.

2. The instant recall applications along with the prayer for condonation of delay have been filed to recall the order dated 10.5.2018 dismissing the writ petition as withdrawn against the applicants/ petitioner no.1/1 (Manoj Kumar), 1/2 (Chandra Kant), 1/3 (Srimati), petitioner no.2 (Dalel Singh), petitioner No.9, Om Prakash @ Omkar.

3. Mr. Devesh Kumar Verma, learned counsel for the private respondents submitted that writ petition was dismissed as withdrawn on the proper application supported by affidavit in respect to the applicants of the instant applications, as such, instant recall applications filed by five applicants cannot be entertained. He further submitted that filing of instant recall application is abuse of process of law, as such, the same are liable to be rejected.

4. I have considered the arguments advanced by learned counsel for the parties.

5. Considering the averment made in paragraph Nos. 5,6 and 7 of the each affidavit filed in support of aforementioned recall applications filed by five applicants to the effect that applications have been defrauded by petitioner no.14, the recall applications should be allowed after condonation of delay.

6. The explanation given for delay is satisfactory.

7. Delay in filing the restoration application is condoned.

8. The cause shown in the affidavit for recalling the order dated 10.5.2018 is sufficient.

9. The order dated 10.5.2018 in respect to petitioner no.1/1, 1/2, 1/3, 2 and 9 is recalled and writ petition is restored to its original number in respect to petitioner nos. 1/1, 1/2, 1/3, 2 and 9.

10. The applications are accordingly allowed. In Re: Civil Misc. Impleadment Application 14 of 2018

1. Heard Mr. Yogesh Kumar Singh, learned counsel for the applicant.

2. No ground for impleadment is made out.

3. The application is accordingly rejected. Order on Writ Petition

1. Heard Mr. M.D. Singh Shekhar, learned Senior Counsel assisted by Ms. Madhuri Singh, learned counsel for the petitioners, Mr. Devesh Kumar Verma, learned counsel for private respondents and learned Standing Counsel for the State.

2. Brief facts of the case are that plot No. 396/1 area 53 decimal and 397/1 area 2.02 acre were recorded in the name of the petitioners in the basic year of consolidation operation. Against the basic year entry of the plot in question, title objection under Section 9A (2) of U.P. Consolidation of Holdings Act, 1953 hereinafter referred as U.P.C.H. Act was filed by respondent nos. 4 to 7 which was allowed by Consolidation Officer vide order dated 7.12.1987 to record the name of respondent nos. 4 to 7 as bhumidhar with transferable right in respect to plot in question after expunging the names of petitioners. A time barred appeal under Section 11 (1) of the U.P.C.H. Act along with prayer for condonation of delay of about one year and six months was filed which was dismissed by Assistant Settlement Officer of Consolidation vide order dated 5.9.1990 on the ground of limitation. Petitioners filed revision under Section 48 of the U.P.C.H. Act which has been dismissed by Deputy Director of Consolidation vide order dated 5.7.1991. Hence this writ petition for the following relief:- "(i) A writ, order or direction in the nature of certiorari quashing the order dated 5.7.1991 passed by the Deputy Director of Consolidation and order dated 5.9.1990 passed by Settlement Officer of Consolidation. (ii) A writ, order or direction in the nature of mandamus directing the respondents to decide the case on merit after condoning delay in filing the appeal by the petitioner before Settlement Officer of Consolidation."

3. This Court entertained the matter on 27.9.1991 and issued notices to the respondent nos. 4 to 8.

4. Learned Senior Counsel for the petitioners submitted that title appeal filed along with the delay of one and half year has been dismissed on the ground of limitation by Appellate Court/ Assistant Settlement Officer Consolidation. He submitted that proper explanation was furnished in appeal by the petitioners but the Appellate Court has taken technical view in the matter and dismissed the title appeal on the ground of limitation. He submitted that revision filed by petitioners has also been dismissed without considering the case as set up in revision. He further placed reliance upon the judgement of Hon'ble Apex Court reported in AIR 1987 SC 1353, Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others in order to demonstrate that matter should be decided on merit rather on technical grounds.

5. On the other hand, Mr. Devesh Kumar Verma, learned counsel for private respondents submitted that there was no proper explanation of delay of one and half year in filing the title appeal, as such, the title appeal was rightly dismissed on the ground of limitation and the order has been maintained in revision in accordance with law, as such, no interference is required against the impugned orders.

6. I have considered the arguments advanced by learned counsel for the parties and perused the records.

7. There is no dispute about the fact that against the order of Consolidation Officer dated 07.12.1987 passed in the proceeding under Section 9A (2) of the U.P.C.H. Act, title appeal was filed on behalf of petitioners with delay of one and half year. There is also no dispute about the fact that title appeal filed by petitioners was dismissed on the ground of limitation and order has been maintained in revision.

8. The perusal of the appellate order fully demonstrate that the Appellate Court has taken technical view in the title appeal filed by petitioner while dismissing the appeal on the ground of limitation. The delay in filing the appeal was one and half year which was properly explained by the petitioners in application as well as affidavit filed in support of appeal.

9. The perusal of the paragraph No.3 of the judgement of Hon'ble Apex Court reported in Collector, Land Acquisition Anantnag (Supra) will be relevant which is as under:- "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 principleHon'ble Apex Court in recent judgment reported in 2023 (16) RD 107 S. Madhusudhan Reddy Vs. Narayana Reddy 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 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.1997 (0) RD 562 Shivraji Vs. Deputy Director of Consolidation

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. "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."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 perspect1997 (0) RD 562 Shivraji Vs. Deputy Director of Consolidation ive, 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 1997 (0) RD 562 Shivraji Vs. Deputy Director of Consolidation 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."

10. Considering the ratio of law laid down by Hon'ble Apex Court as well as the evidence brought on record, the impugned appellate order dated 5.9.1990 passed by Settlement Officer Consolidation and revisional order dated 5.7.1991 passed by Deputy Director of Consolidation are liable to be set aside and the same are hereby set aside. The writ petition stands allowed and matter is remitted back before Officer Consolidation, Etawah to register the appeal on its original number in respect to the petitioners except petitioner nos. 3/1 to 3/6, 4/1 to 4/4, 5, 10, 12/1 to 12/3, 13/1 who have withdrawn the writ petition in respect to their claim. The aforementioned appeal shall be decided on merit after passing necessary order for condonation of delay expeditiously preferably within period of three months from the date of production of certified copy of this order. the respondent Settlement no.2,

11. No order as to costs. Order Date :- 28.4.2025 Vandana Y. VANDANA YADAV High Court of Judicature at Allahabad